Mandatory Advance Electronic Information for International Mail Shipments
| Citation | 86 FR 14245 |
| Record Number | 2021-04373 |
| Published date | 15 March 2021 |
| Section | Rules and Regulations |
| Court | U.s. Customs And Border Protection |
Federal Register, Volume 86 Issue 48 (Monday, March 15, 2021)
[Federal Register Volume 86, Number 48 (Monday, March 15, 2021)]
[Rules and Regulations]
[Pages 14245-14280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04373]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Parts 4, 122, 123, 145, and 149
[Docket No. USCBP-2021-0009; CBP Dec. 21-04]
RIN 1651-AB33
Mandatory Advance Electronic Information for International Mail
Shipments
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security (DHS).
ACTION: Interim final rule; request for comments.
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SUMMARY: To address the threat of synthetic opioids and other dangerous
items coming to the United States in international mail shipments and
to implement the requirements of the Synthetics Trafficking and
Overdose Prevention Act of 2018 (STOP Act), U.S. Customs and Border
Protection (CBP) is amending its regulations to require the United
States Postal Service (USPS) to transmit certain advance electronic
information to CBP. These amended regulations provide that, for certain
inbound international mail shipments, CBP must electronically receive
from USPS, within specified time frames, certain mandatory advance
electronic data (AED) and updates thereto. These regulations describe
the new mandatory AED requirements, including the types of inbound
international mail shipments for which AED is required, the time frame
in which USPS must provide the required AED to CBP, and the criteria
for the exclusion from AED requirements for mail shipments from
specific countries. The regulations also address compliance dates and
the necessary remedial actions that must be taken with respect to
shipments for which USPS has not complied with AED requirements.
DATES:
Effective date: This interim final rule is effective March 15,
2021.
Comment date: Comments must be received by May 14, 2021.
[[Page 14246]]
ADDRESSES: Please submit any comments, identified by docket number
[USCBP-2021-0009], by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Due to COVID-19-related restrictions, CBP has temporarily suspended
its ability to receive public comments by mail.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Due to relevant
COVID-19-related restrictions, CBP has temporarily suspended its on-
site public inspection of submitted comments.
FOR FURTHER INFORMATION CONTACT: Quintin Clarke, Cargo and Conveyance
Security, Office of Field Operations, U.S. Customs & Border Protection,
by telephone at (202) 344-2524, or email at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
A. Purpose of Rule
B. Statutory and Regulatory History
1. Statutory History
2. Regulatory History
i. Trade Act of 2002 Implementing Regulations
ii. Safe Port Act and ISF Regulations
iii. ACAS Regulations
iv. Mail Importation Regulations
C. AED and the Mail System
1. The International Mail System for Inbound U.S. Mail
2. Current CBP Regulatory Requirements for Mail Shipments to the
United States
3. Process for Mail Shipments to the United States
4. International Framework for the Provision of AED for Mail
Shipments
5. Current USPS Transmission of AED to CBP
IV. Mandatory AED for Mail Shipments
A. New 19 CFR Part 145, Subpart G
B. Definitions
C. Mandatory Advance Electronic Data (AED)
1. General Requirements
2. Types of Inbound International Mail Shipments for Which AED
is Required
3. Time Frames for Providing and Updating AED
4. Required AED
a. Item Attribute Information
b. Pre-Advice of Despatch Information
5. Exclusions From AED Requirements for Mail Shipments From
Specific Countries
6. Compliance Dates
7. Shipments for Which USPS has Not Complied With AED
Requirements
D. Penalties
E. Amendment to 19 CFR 145.0
F. Amendment to Other Parts of 19 CFR Chapter 1
G. Flexible Enforcement
V. Statutory and Regulatory Reviews
A. Administrative Procedure Act
B. Executive Orders 12866 and 13563
1. Purpose of Rule
2. Overview of Analysis
3. Population Affected by Rule
4. Costs of Rule
5. Benefits of Rule
6. Regulatory Alternatives
7. Net Impact of Rule
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Privacy
F. Paperwork Reduction Act
G. Other Regulatory Requirements
H. Required Report to Congress
VI. Signing Authority
Glossary of Terms Used
ACAS Air Cargo Advance Screening
AED Advance Electronic Data
APA Administrative Procedure Act
APO Army Post Office
CBP U.S. Customs and Border Protection
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
DHS Department of Homeland Security
DPO Diplomatic Post Office
EMS Inbound Express Mail Service
FPO Foreign Postal Operators
IMPC International Mail Processing Center
IMF International Mail Facility
ISC International Service Center
ISF Importer Security Filing
ITMATT Item Attribute Information
MOU Memorandum of Understanding
NTC National Targeting Center
OMB Office of Management and Budget
PLACI Pre-Loading Advance Cargo Information
PREDES Pre-Advice of Despatch Information
SAFE Port Act Security and Accountability for Every Port Act of 2006
SOP Standard Operating Procedures
STOP Act Synthetics Trafficking and Overdose Prevention Act of 2018
UPU Universal Postal Union
USPS United States Postal Service
WCO World Customs Organization
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim final rule. The Department of Homeland Security (DHS) and CBP
also invite comments that relate to the economic, environmental, or
federalism effects that might result from this interim final rule.
Comments that will provide the most assistance to CBP will reference a
specific portion of the interim final rule, explain the reason for any
recommended change, and include data, information, or authority that
supports the recommended change.
DHS and CBP specifically invite comments on the following issues,
discussed in the rule document below:
Whether CBP should require AED on mail shipments
classified as EMS or parcel post regardless of whether these are
identified as containing documents;
Whether CBP should require AED on mail that is sent using
channels that USPS identifies as ``domestic'' even as these remain
subject to customs examination, including: Mail from APO/FPO/DPO
addresses; mail to/from U.S. territories and possessions, or to/from/
between the Freely Associated States of the Federated States of
Micronesia, the Republic of the Marshall Islands, and the Republic of
Palau; returned U.S. origin items; and items transiting the U.S. in
closed transit;
Whether updates to the AED should be required until the
mail shipment has arrived at the first CBP port;
If any data elements identified as optional under this
rule should be deemed mandatory;
The costs to USPS to return mail without AED;
Comments on CBP's flexible enforcement policy.
II. Executive Summary
The United States is experiencing the worst drug overdose epidemic
since the 1990s. In recent years, there has been a marked increase in
the consumption of illicit opioids, such as heroin and its synthetic
analogues, such as fentanyl. In 2016, there were nearly 64,000 overdose
deaths, of which two-thirds involved opioids, including fentanyl.\1\
From 2016 to 2017, synthetic opioid-involved death rates increased by
45.2 percent.\2\ In light of this, the President declared a public
health emergency in 2017,\3\ and the Secretary for Health and Human
Services made a determination that a public health emergency exists
nationwide.\4\ The public health crisis continues unabated as rate of
overdose deaths has sharply accelerated in the coronavirus disease
(COVID-19)
[[Page 14247]]
pandemic \5\ and synthetic opioids (primarily illicitly manufactured
fentanyl) appear to be the primary driver of the increases in overdose
deaths.\6\
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\1\ U.S. Department of Health and Human Services, Centers for
Disease Control and Prevention, Morbidity and Mortality Weekly
Report: Drug and Opioid-Involved Overdose Deaths--United States,
2013-2017, Vol. 67, Nos. 51 & 52, 1419-27 (January 4, 2019),
available at https://www.cdc.gov/mmwr/volumes/67/wr/mm675152e1.htm
(last accessed, June 17, 2019).
\2\ Id.
\3\ Establishing the President's Commission on Combating Drug
Addiction and the Opioid Crisis, 82 FR 16283 (Apr. 3, 2017)
(Executive Order 13784 of Mar. 29, 2017).
\4\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioid-19apr2019.aspx.
\5\ White House, Notice on the Continuation of the National
Emergency Concerning the Coronavirus Disease 2019 (COVID-19)
Pandemic, February 24, 2021. Available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/notice-on-the-continuation-of-the-national-emergency-concerning-the-coronavirus-disease-2019-covid-19-pandemic/ (last accessed February
24, 2021).
\6\ Centers for Disease Control, Press Release, Overdose Deaths
Accelerated During COVID-19: Expanded Prevention Efforts Needed,
December 17, 2020, available at https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html (last accessed February 20,
2021).
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On October 24, 2018, Congress enacted the Synthetics Trafficking
and Overdose Prevention Act of 2018 (STOP Act), primarily to fight the
influx of deadly opioids, particularly synthetic opioids such as
fentanyl, coming to the United States in international mail
shipments.\7\ Among other things, the STOP Act amends section 343(a)(3)
of the Trade Act of 2002 to require CBP to issue regulations requiring
the United States Postal Service (USPS) to transmit certain advance
electronic data (AED) to CBP for international mail shipments. The AED
required by this rule includes various details about the package's
sender, recipient and contents, information that is generally provided
by foreign senders on customs declarations forms, but only on paper
copies that are affixed to the packages. It is the same information
that is currently required by the UPU and CBP on existing custom
declaration forms and that is provided by foreign senders.
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\7\ Synthetics Trafficking and Overdose Prevention Act of 2018
(STOP Act), Subtitle A of Title VIII of the Substance Abuse-Disorder
Prevention that Promotes Opioid Recovery and Treatment for Patients
and Communities Act (SUPPORT for Patients and Communities Act),
Public Law 115-271 (2018); see also H.R. Rep. No. 115-722, pt. 1, at
7 (2018).
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The current paper process has made it difficult for CBP to most
effectively use the information for targeting packages containing
illegal goods since CBP processing has relied mostly on physical
inspection of the declarations and the packages.
In recent years and in advance of the enactment of the STOP Act,
USPS has been working with CBP through pilot programs to provide the
information received on customs declaration forms to CBP electronically
and in advance of arrival of the package. This assists CBP in its
targeting of high risk shipments. The international postal community
has also been moving towards requiring AED for mail shipments if
required by customs and security authorities in the country of
destination. However, the international mail customs process remains
largely paper-based and there is currently no regulation requiring AED
for mail shipments. As required by the STOP Act, this rule addresses
that gap. Requiring USPS to transmit AED to CBP for international mail
shipments will make data requirements for international mail shipments
comparable to existing AED requirements currently imposed on non-mail
shipments of cargo, subject to the parameters set forth in section
343(a)(3) of the Trade Act of 2002 (19 U.S.C. 1415). The principal
benefit of this rule will be a more precise identification of at-risk
postal shipments in advance of arrival of the package. The required AED
will enable CBP to better target and identify risky mail shipments and
is expected to disrupt the supply chain of illegal opioids and other
dangerous goods. The lack of required AED for mail shipments presents a
security gap that could be exploited by bad actors because it hinders
CBP's ability to effectively target for illegal opioids and other
dangerous goods before they enter the commerce of the United States.
Requiring AED for mail shipments will enhance the security of the
supply chain with respect to international mail shipments by giving CBP
adequate time and information necessary to perform targeted risk
assessments geared towards interdicting illicit and dangerous goods
before they enter the U.S. mail system. This will improve CBP's ability
to detect and disrupt the flow of illicit supply chains that exploit
the postal environment and will reduce the risk that shipments of
illicit fentanyl and other dangerous goods will enter the country.
This rule would impose costs on CBP and USPS in the form of
increased technology costs to set up targeting systems to identify mail
to be inspected based on the AED, as well as training costs, and hold
processing costs. Costs to the United States government total an
undiscounted $55.8 million over a ten-year period of analysis. This
rule would also impose costs on foreign posts in the form of technology
costs needed to transmit AED to the USPS, training costs, and the time
cost to key in AED. The principal benefit of the rule is more precise
identification of mail shipments with illicit goods, including
fentanyl, at an earlier time, improving CBP's effectiveness in
preventing prohibited mail items from reaching the United States.
Accepting the high degree of uncertainty, taking account of the
magnitude of the underlying problem, and recognizing that the rule is
likely to have additional benefits from assisting CBP's targeting to
prevent smuggling of items other than fentanyl, DHS believes, in the
terms of Executive Order 13563, ``that its benefits justify its costs
(recognizing that some benefits and costs are difficult to quantify).''
In developing these regulations, CBP considered the process and
information flow unique to the movement of international mail to the
United States, international efforts to develop AED requirements, and
the AED requirements that apply to non-mail shipments arriving in the
United States. The required AED consists of two elements: (1)
Information already collected through the customs declaration forms
attached to incoming mail, including the contents and value of the
goods in the package as well as sender and recipient information; and
(2) information about the movement of the package, such as the date and
time of departure of the transporting conveyance, the scheduled date
and time of arrival in the United States, transportation information
(e.g., carrier, flight number, voyage number), and destination
International Mail Facility (IMF).\8\ Taking into account how the
international mail process works, these requirements are comparable to
the requirements for the transmission of AED imposed on similar non-
mail shipments of cargo and are consistent with the requirement in
section 343(a)(3) of the Trade Act of 2002 (19 U.S.C. 1415) that
regulations developed under the Act consider certain parameters.\9\
These parameters include, among others, consulting parties likely to be
affected by the regulations, considering existing commercial practices,
and taking into account the extent to which the technology necessary
for parties to transmit the information is available. See 19 U.S.C.
1415(a)(3).
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\8\ In the United States, the IMF is operated by CBP. The new
regulations define IMF as an ``official international mail
processing center operated by CBP.''
\9\ The Postal Accountability and Enhancement Act (PAEA) also
mandates that CBP will afford comparable treatment to shipments of
international mail that are competitive products, regardless of
whether these are shipments by the Postal Service or shipments by
private companies. See 39 U.S.C. 407(e).
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The new regulations provide that for certain inbound international
mail shipments, CBP must electronically receive from USPS, within
specified time frames, certain mandatory AED and updates thereto. The
AED requirement generally pertains to all mail shipments except for
letter class
[[Page 14248]]
mail--documents.\10\ Letter class mail--documents means letter class
mail containing only documents (i.e., any piece of written, drawn,
printed or digital information), excluding objects of merchandise, and
may include M-bags to the extent that such items do not contain goods.
This exception for letter class mail--documents is comparable with the
current AED requirements for non-mail, which do not apply to letters
and documents. Specifically, the new regulations provide that USPS must
transmit AED for inbound international mail shipments containing goods
classified as Express Mail Service (EMS), parcel post, or Letter class
mail--goods, unless a shipment originates from a country that CBP has,
in accordance with the procedures set forth in the new regulations,\11\
excluded from the AED requirements and has informed USPS of the
exclusion. The new regulations will not require AED for letter class
mail--documents and items for the blind consisting of correspondence,
literature in whatever format including sound recordings, and equipment
or materials of any kind made or adapted to assist blind persons in
overcoming the problems of blindness (up to 7 kilograms). Under this
rule, AED will also not be required for items sent as Parcel Post or
EMS that do not contain goods. Similarly, AED will not be required for
returned U.S. origin items, items transiting the U.S. in closed
transit, items sent as U.S. domestic mail, or mail treated as domestic,
including mail to or from APO, FPO, and DPO addresses, mail to or from
U.S. territories and possessions, and mail, from or between the Freely
Associated States of the Federated States of Micronesia, the Republic
of the Marshall Islands, and the Republic of Palau. However, this
exclusion does not preclude CBP's existing authority to inspect any of
these shipments. Pursuant to the new regulations, USPS must provide the
required AED to CBP as soon as practicable, but no later than prior to
loading the inbound international mail shipment onto the transporting
conveyance. Additionally, USPS must electronically provide CBP with
updates to the AED as soon as USPS becomes aware of any changes to the
submitted data or as soon as it becomes aware that more accurate data
is available, until the timeframes for updated AED set forth in the Air
Cargo Advance Screening (ACAS) regulations at 19 CFR 122.48b(b)(2).
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\10\ The UPU uses slightly different terminology (letter post
instead of letter class), however, existing CBP regulations use the
term letter class mail, thus CBP uses letter class mail in this rule
to maintain consistency throughout CBP regulations.
\11\ New 19 CFR 145.74(e) provides that CBP will consult with
USPS in order to make this determination.
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In accordance with the STOP Act, these regulations also contain the
criteria by which certain mail shipments from specific countries may be
excluded from the requirement to provide AED. Namely, if a specific
country or countries do not have the capacity to collect and transmit
AED, represent a low risk for mail shipments that violate relevant U.S.
laws and regulations, and account for low volumes of mail shipments
that can be effectively screened for compliance with relevant U.S. laws
and regulations through an alternative means, they may be excluded from
the AED requirement. CBP will re-evaluate determinations to exclude
specific countries from the requirement to provide AED at a minimum, on
an annual basis.
Additionally, these regulations incorporate provisions of the STOP
Act that address compliance dates, as well as the necessary remedial
actions that must be taken with respect to shipments for which USPS has
not complied with the AED requirements.
To implement the AED requirements, CBP is adding a new subpart G to
title 19 of the Code of Federal Regulations (CFR) part 145. Title 19
CFR part 145 covers Mail Importations. The new subpart G is titled
Mandatory Advance Electronic Data for Mail Shipments. CBP is also
making certain revisions to 19 CFR 145.0 to expand the scope of 19 CFR
part 145 to include the AED provisions. Additionally, CBP is making
revisions to 19 CFR 4.7, 122.0, 123.0, and 149.1 to refer readers
looking for the AED requirements for international mail shipments to
part 145.
The new subpart G of 19 CFR part 145, consists of three new
sections. New Sec. 145.73 adds various definitions specific to the
subpart, new Sec. 145.74 provides details regarding the mandatory AED
CBP must receive from USPS, and new Sec. 145.75 provides the
applicable penalties if USPS accepts a shipment in violation of the
regulations.
III. Background
A. Purpose of Rule
As explained in the Executive Summary, the United States is
experiencing the worst drug overdose epidemic since the 1990s. The
nature of this drug use and overdose has changed over the decades since
it first began. Initially characterized by the abuse of prescription
opioids, drug use shifted towards the consumption of illicit opioids,
such as heroin, in the 2000s. In recent years, there has been a shift
towards the use of synthetic opioids, such as fentanyl, particularly as
suppliers have begun mixing synthetic opioids into heroin in order to
decrease their costs. For the reasons explained below, this shift
towards synthetic opioids has led to a marked increase in the number of
overdose deaths. The consumption of synthetic opioids is particularly
worrisome given this class of drugs' high lethality. Fentanyl is 40
times more potent than heroin \12\ and 100 times more potent than
morphine, a common prescription opiate.\13\ Moreover, consumers of
other opioids may be unaware of the presence of synthetic opioids in
the drugs they purchase through non-prescription means. The heroin
supply has been contaminated with fentanyl, and counterfeit opioid
pills are laced with fentanyl, unbeknownst to many users.\14\ According
to drug seizure data from the DEA National Forensic Laboratory
Information System, fentanyl reports have increased fifty-fold between
2013 and 2017.\15\ According to data from the Centers for Disease
Control and Prevention (CDC), there were nearly 64,000 drug overdose
deaths in 2016, of which two thirds (or, approximately 42,000) involved
opioids. Moreover, the sharpest increase in overdose deaths between
2015 and 2016 occurred in deaths related to synthetic opioids,
including fentanyl.\16\ From 2016 to 2017, synthetic opioid-involved
death rates increased again by 45.2 percent.\17\ In March 2017, the
Commission on Combating Drug Addiction and the
[[Page 14249]]
Opioid Crisis declared a public health emergency under the Public
Health Services Act.\18\ Subsequently, on October 26, 2017, the
Secretary of Health and Human Services made a determination that a
public health emergency existed nationwide as a result of the
consequences of the opioid crisis. This determination of a public
health emergency has been consistently renewed and remains active.
Renewals are located on the Public Health Emergency website.\19\ The
COVID-19 pandemic has only intensified this public health crisis as the
rate of overdose deaths has sharply increased during the pandemic and
synthetic opioids (primarily illicitly manufactured fentanyl) appear to
be the primary driver of the increases in overdose deaths.\20\
According to the CDC, the pandemic has accelerated drug overdose
deaths, resulting in over 81,000 drug overdose deaths in the 12-month
period ending in May 2020 (CDC 2020). CDC notes that ``synthetic
opioids (primarily illicitly manufactured fentanyl) appear to be the
driver,'' increasing 38.4 percent relative to the prior year. Ten
western states reported a more than 98 percent increase in synthetic
opioid-involved deaths over the same period.\21\
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\12\ Ciccarone, D. (2017). Fentanyl in the US heroin supply: A
rapidly changing risk environment. International Journal of Drug
Policy, 46: 107-111, 3.
\13\ Centers for Disease Control and Prevention (CDC), Synthetic
Opioid Overdose Data. Last updated December 19, 2018. Available at
https://www.cdc.gov/drugoverdose/data/fentanyl.html (last accessed
February 22, 2021).
\14\ Centers for Disease Control and Prevention (CDC), Increases
in Fentanyl Drug Confiscations and Fentanyl-related Overdose
Fatalities. Released October 26, 2015. Available at https://emergency.cdc.gov/han/han00384.asp (last accessed February 22,
2021).
\15\ U.S. Drug Enforcement Administration (DEA), National
Forensic Laboratory Information System: Special Maps Release.
Tracking Fentanyl and Fentanyl-Related Substances Reported in NFLIS-
Drug by State, 2016-2017. Washington, DC: Department of Justice at
2, Available at: https://www.nflis.deadiversion.usdoj.gov/DesktopModules/ReportDownloads/Reports/NFLISDrugSpecialRelease-Fentanyl-FentanylSubstancesStateMaps-2016-2017.pdf.
\16\ U.S. Department of Health and Human Services, Centers for
Disease Control and Prevention, Morbidity and Mortality Weekly
Report: Drug and Opioid-Involved Overdose Deaths--United States,
2013-2017, Vol. 67, Nos. 51 & 52, 1419-27 (January 4, 2019),
available at https://www.cdc.gov/mmwr/volumes/67/wr/mm675152e1.htm
(last accessed, June 17, 2019).
\17\ Id.
\18\ Establishing the President's Commission on Combating Drug
Addiction and the Opioid Crisis, 82 FR 16283 (Apr. 3, 2017)
(Executive Order 13784 of March 29, 2017).
\19\ See https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioid-2april2020-aspx.aspx and https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioid-24jan2020.aspx; see also,
https://www.phe.gov/newsroom/Pages/healthactions.aspx.
\20\ Centers for Disease Control, Press Release, Overdose Deaths
Accelerated During COVID-19: Expanded Prevention Efforts Needed,
December 17, 2020, available at https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html (last accessed February 20,
2021).
\21\ Id.
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Synthetic opioids circulating in the United States generally
originate internationally (principally from China and Mexico) and
arrive into the United States through the international mail system,
express consignment carriers, cross-border smuggling operations, and
other means.\22\ CBP is responsible for screening inbound international
mail for and removing packages with dangerous goods (including but not
limited to opioids) from the mail stream before delivery to intended
recipients in the United States. The number of packages flowing through
the international mail system has increased dramatically in recent
years due to the proliferation of e-Commerce and an increase in the
threshold value of goods that can be imported into the United States
free of duties and taxes.\23\ This increased volume of parcels coupled
with the urgency of the opioid epidemic requires that CBP utilize its
resources more effectively to target and intercept packages with
illegal goods. Despite this increase in the volume of mail, there is
currently no requirement in the CBP regulations regarding the
transmission of AED for mail shipments. To fulfill the STOP Act mandate
to stem the flow of deadly opioids and to facilitate the interdiction
of suspect packages, CBP is establishing in this rule requirements for
USPS to transmit certain AED for inbound international mail shipments.
The required AED will also enable CBP to better target and identify all
risky mail shipments and is expected to disrupt the supply chain of
illegal opioids and other dangerous goods. The current lack of required
AED for mail shipments presents a security gap that could be exploited
by bad actors because it hinders CBP's ability to effectively target
for dangerous goods before they enter the commerce of the United
States. Requiring AED for mail shipments will enhance the security of
the supply chain with respect to international mail shipments and help
close this security gap by giving CBP adequate time and information
necessary to perform targeted risk assessments geared towards
interdicting dangerous goods before they enter the U.S. mail system.
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\22\ Fentanyl from China generally enters the United States in
one of two ways: It is either shipped directly to the United States
or is sent to Canada or Mexico before being trafficked across the
border. Mexico also sources fentanyl locally. Fentanyl originating
from China is highly pure, while the drugs sourced from Mexico are
largely impure. U.S. Department of Justice, Drug Enforcement
Administration, 2018 National Drug Threat Assessment, DEA-DCT-DIR-
032-18, pp. 33-36 (Oct. 2018), available at https://www.dea.gov/sites/default/files/2018-11/DIR-032-18%202018%20NDTA%20final%20low%20resolution.pdf (last accessed,
February 20, 2021); see also U.S. Department of Justice, Drug
Enforcement Administration, 2019 National Drug Threat Assessment,
DEA-DCT-DIR-007-20 (Dec. 2019), available at https://www.dea.gov/sites/default/files/2020-01/2019-NDTA-final-01-14-2020_Low_Web-DIR-007-20_2019.pdf (last accessed, February 20, 2021.
\23\ Interim final rule, Administrative Exemption on Value
Increased for Certain Articles, 81 FR 58831 (Aug. 26, 2016); see
also De Minimis Value Increases to $800. CBP News Release, dated
March 11, 2016, available at https://www.cbp.gov/newsroom/national-media-release/de-minimis-value-increases-800 (last accessed, June
16, 2019).
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B. Statutory and Regulatory History
1. Statutory History
Congress has long recognized that the provision of AED for imported
cargo shipments is an essential security tool which enables CBP to
perform advance targeting before the shipments arrive in the United
States, and has authorized CBP to prescribe regulations that mandate
the provision of AED.
Section 343(a) of the Trade Act of 2002 authorizes CBP to
promulgate regulations, in accordance with certain parameters,\24\
providing for the mandatory transmission of cargo information by way of
a CBP-approved electronic data interchange (EDI) system before the
cargo is brought into or departs the United States by any mode of
commercial transportation. The required cargo information is that which
is reasonably necessary to enable high-risk cargo to be identified for
purposes of ensuring cargo safety and security, pursuant to the laws
enforced and administered by CBP.
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\24\ Section 343(a)(3) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)) provides parameters for developing regulations under the
Act, such as consulting parties likely to be affected by the
regulations, considering existing commercial practices, and taking
into account the extent to which the technology necessary for
parties to transmit the information is available.
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Section 203 of the Security and Accountability for Every Port Act
of 2006 (Pub. L. 109-347, 120 Stat 1884) (SAFE Port Act), requires the
Secretary of Homeland Security, acting through the Commissioner of CBP,
to promulgate regulations requiring the electronic transmission of
additional data elements for improved high-risk targeting, including
appropriate security elements of entry data for cargo destined to the
United States by vessel. These electronic data elements are required
prior to loading the cargo on vessels at foreign seaports.
Most recently, on October 24, 2018, Congress enacted the
``Substance Use--Disorder Prevention that Promotes Opioid Recovery and
Treatment for Patients and Communities Act'' (SUPPORT for Patients and
Communities Act). Public Law 115-271. Title VIII of this law is the
``Synthetics Trafficking and Overdose Prevention Act of 2018'' (STOP
Act), which mandates certain actions regarding mail.\25\ Section 8003
of the STOP Act amends section 343(a)(3)(K) of the Trade Act of 2002,
to require DHS to prescribe regulations mandating that USPS transmit
certain advance electronic information for international mail
[[Page 14250]]
shipments to CBP.\26\ This rule implements the AED requirements set
forth in the STOP Act.\27\
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\25\ Section 8002 of the STOP Act imposes new payment
requirements for items that are sent to the United States through
the international postal network by Inbound Express Mail service
(EMS). This section also requires the Secretary of the Treasury to
prescribe new regulations in this regard. The regulations to
implement section 8002 of the STOP Act was the focus of a separate
CBP and Department of the Treasury rulemaking. 85 FR 47018 (Aug. 4,
2020).
\26\ Sec. 802, Consolidated Appropriations Act, 2021, Public Law
116-260 (Dec. 27, 2020), further amended certain provisions of the
Trade Act of 2002, such that during the period beginning on January
1, 2021, through March 15, 2021, the Postmaster General may accept a
shipment without transmission of AED if the Commissioner determines,
or concurs with the determination of the Postmaster General, that
the shipment presents a low risk of violating any relevant United
States statutes or regulations, including statutes or regulations
relating to the importation of controlled substances such as
fentanyl and other synthetic opioids.
\27\ In keeping with the requirements of the Trade Act of 2002,
these regulations are developed in adherence to the parameters set
forth in section 343(a)(3) of the Trade Act of 2002 (19 U.S.C.
1415(A)(3)).
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2. Regulatory History
The AED requirements as currently provided in CBP's regulations
pursuant to the Trade Act of 2002 and the SAFE Port Act are described
below. They generally require the carrier or other eligible parties to
provide certain AED to CBP. The specific requirements vary by mode of
transportation.
i. Trade Act of 2002 Implementing Regulations
On December 5, 2003, CBP published a final rule in the Federal
Register (68 FR 68140) to effectuate the provisions of the Trade Act of
2002 (Trade Act final rule). The Trade Act final rule amended the
regulations in title 19, Code of Federal Regulations (CFR), to require
carriers or other eligible parties to submit certain electronic data
for cargo in advance, i.e., AED. The required time frame varies
depending on the mode of transportation:
For vessel cargo, the AED must be received by CBP 24 hours
before the cargo is laden aboard the vessel at the foreign port. 19 CFR
4.7.
For air cargo, the AED must be received by CBP either: (1)
No later than the time of the departure of the aircraft for the United
States,\28\ in the case of aircraft that depart for the United States
from any foreign port or place in North America, including locations in
Mexico, Central America, South America (from north of the Equator
only), the Caribbean, and Bermuda; or (2) no later than 4 hours prior
to the arrival of the aircraft in the United States, in the case of
aircraft that depart for the United States from any foreign area other
than that specified in 19 CFR 122.48a(b)(1). 19 CFR 122.48a(b)(1).
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\28\ The trigger time is no later than the time that wheels are
up on the aircraft, and the aircraft is en route directly to the
United States. 68 FR 68140; see also, 19 CFR 122.48a(b).
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For rail cargo, the AED must be received by CBP no later
than 2 hours prior to the cargo reaching the first port of arrival in
the United States. 19 CFR 123.91.
For truck cargo, the AED must be received by CBP no later
than either 30 minutes or 1 hour prior to the carrier's reaching the
first port of arrival in the United States, or such lesser time as
authorized, based upon the CBP-approved system employed to present the
information. 19 CFR 123.92.
To date, no rule has been published that extends the advance
electronic cargo information mandate to USPS shipments.
ii. SAFE Port Act and ISF Regulations
Pursuant to section 203 of the SAFE Port Act, and section 343(a) of
the Trade Act of 2002, on November 25, 2008, CBP published an interim
final rule in the Federal Register (73 FR 71730), requiring importers
(referred to as ISF importers) and carriers to submit additional
information pertaining to cargo before the cargo is brought into the
United States by vessel.\29\ This became known as the Importer Security
Filing or ``ISF'' rule. The ISF rule was silent on whether it covered
mail shipments or whether USPS is considered to be an ISF importer. To
date, CBP has not required ISF information from USPS.
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\29\ The ISF requirements apply to vessels and are requirements
in addition to what is required pursuant to the Trade Act rule. In
general, ISF importers must submit the required information 24 hours
before the cargo is laden aboard the vessel at the foreign port. In
general, carriers are required to provide stow plan information 48
hours after the vessel departs from the last foreign port, or for
voyages less than 48 hours, prior to arrival. See 19 CFR part 149
(AED requirements for ISF importers) and 19 CFR 4.7c (AED
requirements for carriers); see also 19 CFR 4.7d.
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iii. ACAS Regulations
To address ongoing aviation security threats, on June 12, 2018, CBP
published an interim final rule in the Federal Register entitled, ``Air
Cargo Advance Screening (ACAS)'' (83 FR 27380), which amended the CBP
Trade Act regulations to implement a mandatory ACAS program. Under this
program, specified AED must be submitted to CBP for air cargo
transported onboard U.S.-bound aircraft as early as practicable, but no
later than prior to loading of the cargo onto the aircraft. See 19 CFR
122.48b(b)(1). The party submitting the initial ACAS data must also
update the initial filing if any submitted data changes or more
accurate data becomes available, up until the timeframes specified in
19 CFR 122.48a(b) for submitting advance information under 19 CFR
122.48a(a). See 19 CFR 122.48b(b)(2). The required ACAS data is a
subset of the data required under 19 CFR 122.48a. The ACAS program
enhances the security of the aircraft and passengers on U.S.-bound
flights by enabling CBP to perform targeted risk assessments on the air
cargo earlier, namely, prior to the aircraft's departure for the United
States. These risk assessments aim to identify and prevent high-risk
air cargo from being loaded on the aircraft that could pose a risk to
the aircraft during flight.
iv. Mail Importation Regulations
Title 19 CFR part 145 contains the specific requirements and
procedures for the importation of mail subject to customs examination.
These regulations are discussed in section III.C (AED and the Mail
System), below. There is currently no AED requirement for mail
shipments in 19 CFR part 145.
C. AED and the Mail System
Currently, the AED requirements described in section III.B.
(Statutory and Regulatory History) above have not been applied to items
being shipped via the international mail system. This is due to unique
circumstances that pertain to international mail shipments that do not
exist for non-mail shipments. Specifically, there are different
processes, technologies, and international agreements that apply to
international mail shipments that are not applicable to non-mail
shipments. These differences must be taken into account in developing
AED requirements for international mail. This rule establishes AED
requirements for international mail that take its unique circumstances
into account. CBP has consulted with USPS in the development of this
rule.
The sections below describe in detail the CBP requirements and
processes for mail shipments, the international transmission of AED and
USPS's transmission of that AED to CBP.
1. The International Mail System for Inbound U.S. Mail
International mail destined for the United States is customarily
collected at origin country local branches (i.e., local post offices)
of foreign postal operators (FPOs), moved to larger international mail
processing centers (IMPCs),\30\ sorted and loaded for transport to the
[[Page 14251]]
United States.\31\ Most mail is transported to the United States in the
cargo portion of commercial carrier flights, although some mail may be
transported via sea, rail, or land. IMPCs communicate the pending
arrival of mail shipments via an automated messaging system described
in further detail below. Mail arrives in the United States at a CBP
port of arrival. After arrival it is transferred to an International
Mail Facility (IMF) or International Service Center (ISC) for
processing and inspection by USPS and CBP.\32\ Once mail is cleared by
CBP, it enters the domestic mail stream.\33\
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\30\ In the United States, IMPCs are referred to as
``International Mail Facilities'' or IMFs. In this document, we use
the term IMPC where the reference is to a facility located outside
the United States and the term IMF when the reference is to a
facility located within the United States.
\31\ For further information about IMPCs see: http://www.upu.int/en/activities/standards/impcs.html.
\32\ IMFs are CBP facilities. USPS has a presence at each IMF.
At four of the IMFs USPS operates a major ISC.
\33\ The mail inspection process is described in detail in
sections III.C.1 (The International Mail System for Inbound Mail)
and III.C.5 (Current USPS Transmission of AED to CBP).
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The international mail system is governed by the Universal Postal
Union (UPU). The UPU was established in 1874 and has its headquarters
in Berne, Switzerland. It is a specialized agency of the United Nations
that governs the international movement of mail amongst its over 190
member countries under the Universal Postal Convention. Members of the
UPU agree to provide a ``single postal territory'' for international
mail, which involves responsibility for sending and receiving
international mail across a global network of cooperating posts. The
UPU establishes the rules for international mail exchange among its
members and provides technical assistance to improve the quality of
postal services. It is the primary forum for cooperation between postal
sector entities across a global network of posts. The United States is
a member of the UPU. Pursuant to 39 U.S.C. 407, the Department of
State, in collaboration with USPS represents the United States at the
UPU.\34\ USPS is the designated postal operator in the United States
and is required to accept and deliver inbound international mail on
behalf of foreign postal operators.
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\34\ Pursuant to 39 U.S.C. 407, the Secretary of State is
responsible for the formulation, coordination and oversight of
foreign policy related to international postal services, and has the
power to conclude postal treaties, conventions and amendments
related to the same. In addition, in carrying out the aforementioned
responsibilities, the Secretary of State shall coordinate with other
agencies as appropriate, and include appropriate liaison with the
USPS. See 39 U.S.C. 407(b).
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Both documents and goods may be transported through the
international mail system. There are four main classes of mail relevant
to this rule, described in more detail in section IV.B (Definitions)
and C (Mandatory Advance Electronic Data (AED)): Letter class mail--
documents, Letter class mail--goods (also referred to as ``small
packets''), Parcel post, and Express Mail Service (EMS).\35\ Most
countries, including the United States, impose customs requirements
only on packages containing goods. For these, customs declaration forms
with specific data requirements agreed to at the UPU are used
worldwide.\36\ For the most part, the international mail process is
paper-based and involves the sender providing information to an FPO
using paper forms that are affixed to the package and the FPOs
submitting that information/form to the destination post. In the case
of the United States, the destination post is USPS. USPS in turn
submits this information to CBP. In the electronic environment,
information also travels between established postal networks and uses
existing messaging standards. In order to require AED for mail
shipments to the United States, FPOs first have to develop the
capability to provide AED to USPS. Until recently, that capability was
non-existent. However, in recent years, a number of FPOs, as well as
the United States, have been moving towards providing AED for mail, and
USPS has been actively pursuing data sharing agreements with several
countries that would require the mutual transmission of AED.
Concurrently, the UPU has developed a Customs Declaration System (CDS)
that can be used by any country to collect and transmit customs data
and the United States has been assisting with capacity building
efforts. As a result of the STOP Act and other international efforts to
require AED for international mail, the capability and the provision of
AED for international mail shipments has been increasing and is now
likely to be accelerated.
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\35\ As noted earlier, the UPU uses slightly different
terminology, i.e., letter post rather than letter class, however, in
order to remain consistent with existing CBP regulations, this rule
will use the term letter class.
\36\ Specifically, the UPU forms CN 22 and 23 as described in
the Acts of the UPU (which include the UPU Constitution, General
Regulations, Convention, Convention Regulations, and Postal Payment
Services Agreement). The United States requires a customs
declaration on certain incoming mail, as set forth in 19 CFR part
145, subpart B. The forms CN 22 and CN 23, provided by the foreign
postal operators to the sender, are used for such purpose. As such,
the forms indicate the sending country. In general terms, the CN 22
requires, inter alia, the item ID (barcode), sender name, address (a
sender may also provide a telephone/fax/email), recipient name and
address, description of contents, quantity, weight, and value,
conditionally requires the HS Tariff number, country of origin and
comments (e.g. whether goods are subject to quarantine, sanitary/
phytosanitary inspection or other restrictions), and contains a
section for the mailing office to place a date stamp, thus providing
the mailing date. The CN 23 is required for items valued over $300.
The CN 23 requires the same information as the CN22, as well as
postal charges/fees, conditionally requires a license number,
certificate number and invoice number, optionally requires the
importer's reference number and telephone/email.
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In general terms, all international mail arriving into the United
States is subject to examination by CBP. Initially, all packages enter
the mail facility through a portal designed to detect radiation. Once
inside the facility, a subset of packages is targeted for additional
non-intrusive inspection, and a subset of these undergoes further
visual inspection by CBP officers. Due to the large volume of mail
arriving in the United States on a daily basis, it is not feasible for
CBP to inspect every package for illegal or dangerous items. Therefore,
CBP has established protocols to determine which packages it will
consider for inspection based on intelligence surrounding known risks,
referred to as targeting.
As noted above, the United States and various other members of the
UPU have improved technical capabilities to provide AED in the postal
environment in recent years. At present, a number of FPOs collect and
share AED with USPS voluntarily or on the basis of mutual agreements.
The AED generally includes the same information collected on the
customs declarations forms for mail.\37\
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\37\ Currently, these are usually the UPU forms CN 22 and CN 23.
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Since 2014, USPS and CBP have been engaged in a pilot program at
various IMFs to use the inbound AED collected by USPS to develop more
automated and sophisticated targeting systems. The pilot program is
described in more detail in section III.C.5 (Current USPS Transmission
of AED to CBP). AED allows CBP to target based on information
customarily provided by the sender on the customs declarations forms.
This information is received by USPS, which in turn provides it to CBP.
CBP officers analyze the information at targeting facilities, including
the CBP Office of Field Operations National Targeting Center (NTC), and
at IMFs in the United States. This electronic data-driven approach is
expected to result in better targeting of packages most likely to
contain illegal goods. Moreover, because AED data can be analyzed prior
to the arrival of a package at the IMF, the provision of AED will
enable CBP to place a hold request on a package in time for USPS to
prepare its systems to locate the package. While CBP expects to utilize
AED targeting alongside other risk assessment methods and random
inspections, the mandatory provision of AED will enable more
sophisticated and
[[Page 14252]]
efficient targeting moving forward. As the volume of mail received in
the United States steadily rises, the ability to target better and more
efficiently is of critical importance.
2. Current CBP Regulatory Requirements for Mail Shipments to the United
States
Title 19 CFR part 145 contains the specific requirements and
procedures for the importation of mail subject to CBP examination.
Currently, the focus of these regulations is on duties and entry
requirements and it does not include an AED requirement for mail
shipments. This rule amends the existing regulations to add a new
subpart G to part 145 to cover AED for mail shipments. Several sections
included in part 145 are relevant to this rule.
Section 145.1 provides definitions for mail article and letter
class mail. A mail article is any posted parcel, packet, package,
envelope, letter, aerogramme, box, card, or similar article or
container, or any contents thereof, which is transmitted in mail
subject to customs examination. Letter class mail is any mail article,
including packages, post cards, and aerogrammes, mailed at the letter
rate or equivalent class or category of postage. This rule adds some
new definitions in the new subpart G that are relevant to the AED
provisions, including definitions of letter class mail--documents and
letter class mail--goods. Pursuant to Sec. 145.11(a), a clear and
complete Customs declaration on the form provided by the foreign post
office, giving a full and accurate description of the contents and
value of the merchandise, must be securely attached to at least one
mail article of each shipment. Currently, this requirement is satisfied
by attaching a UPU declaration form. This requirement generally does
not apply to letter class mail--documents.
The above provisions will continue to apply to 19 CFR part 145,
including the new subpart G regarding AED.
3. Process for Mail Shipments to the United States
Most international mail comes to the United States by air, although
it can be transported by any mode of transportation. The mail process
is briefly described below.
International mail is generally subject to customs control and
eligible mail items are accompanied by paper forms.\38\ After receipt
of the mail item with paper forms that satisfy the requirements of 19
CFR 145.11,\39\ the FPO assigns it to a labeled receptacle, typically a
bag or tray. Receptacles are then assigned to a dispatch. A dispatch is
a shipment of receptacles of the same mail category and class sent from
one post to another. A dispatch may consist of only one receptacle
(e.g., bag or tray) or may consist of several, depending on the volume
of mail at the time. Each dispatch is accompanied by a paper bill
describing the dispatch.\40\ This ``dispatch level information''
includes information relating to the origin and destination post,
dispatch number, date of departure of the transporting conveyance,
scheduled international mail facility, total weight of dispatch, and
similar information for receptacles contained within the dispatch.\41\
Individual receptacles of a dispatch do not always stay together as
they progress through the supply chain. The FPO hands over the
receptacles to the transporting carrier, along with dispatch level
information on the mail to be conveyed.\42\ The carrier does not
receive any item level information about the contents or other data
about mail items in the receptacles.
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\38\ These are UPU Forms CN 22 and 23. For examples of the CN 22
and CN 23 forms, see the WCO-UPU Postal Customs Guide, Universal
Postal Union (June 2014) at pages 31, 33, found at http://www.upu.int/en/activities/customs/wco-upu.html. See also, footnote
36. Letters and papers sent letter class mail to the United States
are generally not subject to customs control.
\39\ These are the UPU forms CN 22 and CN 23. For more
information, see footnotes 36 and 40.
\40\ These are the UPU forms CN 31 letter bill, CN 32 letter
bill for bulk mail or CP 87 parcel bills. See http://www.upu.int/en/activities/letter-post/form-completion-instructions.html, http://www.upu.int/en/activities/parcels/form-completion-instructions.html
(last accessed July 24, 2019).
\41\ In UPU terms, when this information is transmitted
electronically, it may be referred to as ``pre-advice of dispatch''
or PREDES. As described in section IV (Mandatory AED for Mail
Shipments) below, the U.S. receives this information electronically,
i.e., as PREDES, in situations where the USPS-CBP pilot is active
and a data sharing agreement exists between the United States and
the origin post.
\42\ In UPU terms, this dispatch level information conveyed to
the carrier is referred to as ``carrier/documents international
transport advice.'' The information is provided via copies of the
paper Delivery Bills CN 38 and CN 41, or the equivalent electronic
message referred to by the UPU as CARDIT. The information contains
dispatch level information similar to the information the
destination post receives, as well as the origin post's expectation
of the transport service for the consignment of mail receptacles
assigned to the carrier.
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The carrier assigns receptacles to a specific transport--referred
to as a consignment--regardless of the dispatch (or dispatches) to
which the receptacles belong. The transporting carrier, pursuant to CBP
manifest requirements, manifests the shipment as receptacles of mail.
Upon arrival in the United States at a CBP port of arrival the mail is
transferred to an IMF or ISC for processing and inspection by USPS and
CBP.\43\ USPS scans the barcoded receptacle IDs, opens the receptacles,
and scans the barcoded mail as received. USPS is generally required to
present all inbound mail to CBP for inspection. CBP then selects mail
for inspection based on its risk determinations, as described above.
Subject to certain exceptions, CBP can open any mail item and hold it
for further examination or review. Once the mail is cleared, CBP
returns it to USPS to be introduced to the domestic USPS network and
delivered to its final destination.
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\43\ The USPS has nine international mail processing facilities
in the United States. Five of these facilities are designated as
International Service Centers (ISCs) and they process inbound
international mail originating from, and dispatch outbound
international mail destined to, foreign countries. The five ISCs are
located in: New York City, New York; Miami, Florida; Los Angeles,
California; San Francisco, California; and Chicago, Illinois. USPS
also receives international mail in four smaller facilities in
Honolulu, Hawaii; Newark, New Jersey; San Juan, Puerto Rico; and St.
Thomas, U.S. Virgin Islands. In this rule, we will refer to USPS
facilities collectively as ``mail facilities'' unless it is
necessary to make a specific reference to an ISC. Separately, CBP
has nine International Mail Facilities (IMFs), located at or near
the USPS mail facilities, in: New York City, New York; Miami,
Florida; Los Angeles, California; San Francisco, California;
Chicago, Illinois; Honolulu, Hawaii; Newark, New Jersey; San Juan,
Puerto Rico; and St. Thomas, U.S. Virgin Islands. In our document,
we will refer to the CBP facilities as IMFs.
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As described further in section III.C.5 (Current USPS Transmission
of AED to CBP), USPS transmits AED to CBP only in those cases where the
sending FPO has an agreement with USPS and USPS actually receives AED,
and where the pilot program between CBP and USPS for the transmission
of such AED is operational. In cases where CBP does not receive AED for
a mail shipment, the only information CBP receives is on the paper
forms affixed to the package.\44\ This means that CBP generally only
gets an opportunity to access this information when the mail shipment
is physically presented. This paper process does not provide sufficient
time for CBP to evaluate risks in advance or even after the items have
been presented, due to the steadily increasing volume of mail reaching
the United States and the need for speedy clearance for domestic
distribution of the mail.
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\44\ As noted earlier, these are the UPU forms CN 22 and CN 23.
For more, see footnotes 36 and 40.
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4. International Framework for the Provision of AED for Mail Shipments
In 2012, with strong U.S. encouragement, the UPU resolved to
advance an international mail security model that would rely on the
provision of AED, adopting Article 8 (Postal Security) of the Universal
Postal
[[Page 14253]]
Convention to provide for the exchange of AED, effective January 1,
2014.\45\ As a result, the UPU established an AED task force to help
guide and accelerate programs necessary to advance the provision of AED
by the UPU membership. This entailed the member countries' agreeing on
a standardized AED message format, having the UPU develop Information
Technology (IT) systems capable of transmitting AED, and fostering
efforts to build capacity by providing these IT systems (and training)
to postal operators in need of them. These efforts have increased the
adoption of AED exchanges among UPU members and have made it easier for
countries to participate. The UPU and its member countries continue to
move towards making AED mandatory if required by destination customs
and/or security authorities.
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\45\ Joint WCO-UPU Guidelines on the Exchange of Electronic
Advance Data (EAD) Between Designated Operators and Customs
Administrators, at 12, available at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/joint-wco-upu-guidelines.aspx (last accessed July 31, 2019).
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Separately, the World Customs Organization (WCO) \46\ SAFE
Framework of Standards of 2015 \47\ provides standards on implementing
a Pre-loading Advance Cargo Information (PLACI) regime as an additional
layer of security for air cargo and mail shipments. Specifically, a
PLACI regime includes the submission of pre-loading data (7+1 data
elements) \48\ by various entities in the air cargo supply chain,
including ``Postal Operators,'' as soon as the information becomes
available, but no later than prior to loading the cargo/mail shipment
onto the aircraft.\49\ The goal is to ensure a harmonized approach
towards the implementation of the PLACI regimes, so that Members may
align their efforts to the fullest extent possible.
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\46\ The World Customs Organization (WCO) is an independent
intergovernmental body with a mission to enhance the effectiveness
and efficiency of Customs administrations. The WCO provides a forum
for dialogue between national Customs delegations, technical
assistance and training. It is also a global center of customs
expertise in all modes of traffic, including postal traffic. WCO-UPU
Postal Customs Guide, Universal Postal Union (June 2014) at page 6.
\47\ Acronym for Framework of Standards to Secure and Facilitate
Global Trade (``SAFE Framework of Standards'').
\48\ The shipper name and address (referred to as the consignor
per the WCO guidelines), consignee name and address, cargo
description, piece count, weight and the air waybill number. See
Annex III of the SAFE Framework of Standards.
\49\ Representative PLACI regimes include the United States Air
Cargo Advance Screening (ACAS), Canada Pre-load Air Cargo Targeting
(PACT), and European Union Pre-load consignment information for
secure entry (PRECISE).
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The AED requirements set forth in this rule are consistent with
these international programs.
5. Current USPS Transmission of AED to CBP
Since the enactment of the Trade Act of 2002, the United States and
a number of other industrialized countries have improved their
technical capabilities to provide AED. AED for inbound international
mail is made possible by FPOs collecting and sharing the data with USPS
voluntarily, through bilateral or multilateral agreements. In order to
receive AED from a foreign post, USPS needs to sign a data sharing
agreement that sets out the appropriate data formats to be used,
privacy considerations, and regulatory requirements. USPS has leveraged
its provision of AED for outbound shipments to incentivize FPOs to
provide AED for inbound shipments. Additionally, USPS has prioritized
obtaining AED from the largest volume FPOs, which collectively account
for more than 90 percent of all inbound volume. Currently, USPS has
data sharing agreements with about 150 foreign postal operators, though
such data sharing agreements do not imply that a foreign post is
actually tendering data to USPS. Such agreements rather provide a
mechanism for the exchange of such data were it to occur.
Currently, USPS adheres to global standards established by the UPU
for the particular data element requirements for the AED it collects.
These data elements include item information \50\ (referred to by the
UPU as ITMATT, which is the Item Attribute EDI message standard) such
as the sender's full name and address (including full business name),
the recipient's full name and address, the stated content description,
unit of measure, and the quantity, weight, value, and date of the
mailing.\51\ The data also includes receptacle and flight arrival
information (referred to by the UPU as PREDES).\52\ As detailed in
section IV.C.4.a (Item Attribute Information), with the exception of
the elements declared value and designated operator, the required data
elements are comparable to the information CBP requires under ACAS and
the Trade Act of 2002 implementing regulations.\53\ In general, under
the pilot FPOs are required to submit AED up to four hours prior to
loading. The pilot is discussed in greater detail below.
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\50\ This item information is the same information collected
using UPU forms CN 22 and 23 in the paper environment. For
additional information, see Section III.C.1 (International Mail
System for Inbound Mail) and footnotes 36, and Section III.C.2
(Current CBP Requirements for Mail Shipments to the U.S.) and
footnote 40.
\51\ See generally, Joint WCO-UPU Guidelines on the Exchange of
Electronic Advance Data (EAD) Between Designated Operators and
Customs Administrators, available at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/joint-wco-upu-guidelines.aspx (last accessed July 24, 2019).
\52\ This information is the same information collected using
UPU forms CN 31, 32 and 87 in the paper environment. For additional
information, see Section III.C.2 (Current CBP Requirements for Mail
Shipments to the U.S.) and footnotes 40, 41, and 42.
\53\ As noted previously, the element relating to declared value
is required on the customs declarations forms. The designated
operator generally appears on these forms. (Designated operator is
the entity officially designated by a member country of the UPU to
operate postal services and fulfill its treaty obligations to the
UPU and is usually the entity that issues the declaration forms. For
example, in the United States, the designated operator is USPS and
is reflected on the USPS declaration forms for use by senders
mailing items to destinations outside the United States. Similarly,
the declaration forms for mail coming to the United States generally
reflect the designated operator of the sending post/country).
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USPS and CBP began a pilot program in 2014 at the New York IMF to
use the inbound AED that USPS collects as detailed above to facilitate
more automated and advance targeting by CBP. Starting in 2015, similar
pilot programs and targeting based on AED have been expanded to include
seven IMFs. Concurrently, on September 1, 2017, CBP and USPS signed a
Memorandum of Understanding (MOU) in which both agencies agreed to
collaborate together on day-to-day operations, strategic planning, and
other initiatives related to the inspection of goods imported and
exported through the mail, including the transmission of AED.\54\ To
date, the pilots cover seven IMFs, and pursuant to these pilots USPS
transmits AED to CBP on incoming mail, assuming it is provided with the
AED by the FPO. The pilots are voluntary and even FPOs with agreements
with the USPS do not provide AED on all mail sent to the United States
and there are no consequences for non-compliance.
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\54\ The MOU was updated in June 2019 and again in December
2020.
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Pursuant to the pilot, if USPS receives AED, USPS provides CBP with
that AED via electronic message files from the USPS Electronic
Manifest-Central Database (EM-CDB) system to CBP's Automated Targeting
System (ATS) \55\ to enable CBP to review and target specific high-risk
mail items prior to their arrival in the United States. AED allows CBP
to target based on the same information provided by the sender on the
customs declarations forms (including sender
[[Page 14254]]
name, recipient name, and the contents of the package), except in the
AED environment this information is provided in advance in electronic
form. This AED is analyzed by CBP officers at IMFs using locally
developed algorithms as well as intelligence linked to their system
from the NTC and local law enforcement. For example, CBP officers may
flag a package being sent by a known distributor of illicit drugs. CBP
identifies the individual target items by placing what is called an
electronic hold on the item. An electronic hold is transmitted to USPS
using a secure file transfer protocol between CBP and USPS that is
automated and takes place in near real-time. USPS then uses its barcode
tracking and scanning system to locate the inbound targeted high-risk
items with electronic holds. The holds are executed at the USPS mail
facilities, downstream plants or delivery units. Once located, USPS
presents the targeted items to CBP for inspection.
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\55\ The CBP Automated Targeting System (ATS) is the system of
data CBP currently uses for this purpose.
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The USPS-CBP AED pilot programs, which are voluntary and depend
upon mutual agreement with some, but not all FPOs, will be replaced by
the AED regulatory program when this rule takes effect. After
implementation of the rule, the AED requirement will be mandatory and
enforceable.
IV. Mandatory AED for Mail Shipments
To fulfill the STOP Act mandate to stem the flow of deadly opioids
and to facilitate the interdiction of suspect packages, CBP is
establishing requirements for USPS to transmit certain AED for inbound
international mail shipments. This AED consists of two elements--``Item
attribute information'' and ``Pre-advice of despatch information''.
Item attribute information is the information about the attributes
(characteristics) of mail items and their contents already collected
through the customs declaration forms, including the contents and value
of the goods in the package as well as sender and recipient
information.\56\ USPS will collect this information from its
counterparts at foreign posts through existing ``ITMATT'' electronic
messages.
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\56\ For a more detailed discussion of this information as
collected in the paper environment, see Section III.C.1
(International Mail System for Inbound Mail) and footnote 36, and
Section III.C.2 (Current CBP Requirements for Mail Shipments to the
U.S.) and footnote 40.
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Pre-advice of despatch information is information about the
shipment (``dispatch'' or ``despatch'') \57\ of mail receptacles of the
same category and class sent from one post to another that includes the
mail item. This information relates to the movement of the package by a
carrier and is information of the type customarily collected by USPS
via letter or parcel bills,\58\ including the scheduled date and time
of arrival in the United States, transportation information (e.g.,
carrier, flight number, voyage number), and destination IMF.\59\ USPS
will collect this information from its counterparts at foreign posts
through existing ``PREDES'' electronic messages.
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\57\ Despatch is an international term of art used in UPU
documentation. CBP has used the term here for consistency. The
``pre-advice of despatch information'' is usually referred to by its
acronym PREDES in the AED format.
\58\ The UPU forms CN 31, 32, and 87. For more information, see
footnote 40.
\59\ For a more detailed discussion of this information as
collected in the paper environment, see Section III.C.2 (Current CBP
Requirements for Mail Shipments to the U.S.) and footnotes 40, 41,
and 42.
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Obtaining this ITMATT information and the dispatch level
information as AED will enable CBP to better identify, target and
mitigate high-risk mail shipments.
Taking into account how the international mail process works, these
requirements are comparable to the requirements for the transmission of
AED imposed on similar non-mail shipments and are consistent with the
requirement in section 343(a)(3) of the Trade Act of 2002 (19 U.S.C.
1415) that regulations developed under the Act consider certain
parameters.\60\ As described in section III.B (Statutory and Regulatory
History), CBP's AED requirements for non-mail shipments vary depending
on the mode of transportation and generally require the carrier to
transmit the information to CBP. However, the requirements for
transmission of AED for mail shipments must follow the international
postal framework which does not vary based on mode of transportation.
Additionally, the STOP Act specifically provides that USPS must provide
AED for mail shipments to CBP.\61\ For non-mail, the AED requirements
generally pertain to carriers and other eligible parties. Accordingly,
the AED requirements set forth in this rule are comparable to the AED
requirements for non-mail. These AED requirements will be the only AED
requirements applicable to USPS for inbound international mail
shipments at this time.
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\60\ The PAEA also mandates that CBP will afford comparable
treatment to shipments of international mail that are competitive
products, regardless of whether these are shipments by the Postal
Service or shipments by private companies. See 39 U.S.C. 407.
\61\ While the STOP Act requires regulations that require USPS
to provide AED for international mail shipments to CBP, it does not
preclude CBP from imposing requirements to obtain AED relating to
international mail shipments from other appropriate parties, such as
private carriers. See section 343(a)(3)(K)(viii) of the Trade Act of
2002 (19 U.S.C. 1415(a)(3)(K)(viii)). This rule only addresses the
AED that must be provided by USPS.
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In order to implement mandatory AED for mail shipments, CBP must
adhere to the parameters applicable to the development of regulations
under section 343(a) of the Trade Act of 2002. While public health,
safety and national security are paramount, the Trade Act of 2002
parameters require CBP to give due consideration to the concerns of the
affected parties and the flow of commerce. These parameters include,
among others, provisions requiring consultation with the affected
parties and consideration of the differences in the practices among the
different parties in comparable non-mail shipments. In addition, the
parameters require that the information collected pursuant to the
regulations be used for ensuring cargo safety and security, preventing
smuggling, and commercial risk assessment targeting, and require CBP to
balance the expected improvement in cargo safety and security with the
impact of this information collection and targeting on the flow of
commerce. The parameters also require that the obligations imposed must
generally be upon the party most likely to have direct knowledge of the
required information and mandate that if this is not feasible, that the
obligations imposed take into account ordinary commercial practices for
receiving data and what the party transmitting the information
reasonably believes to be true. In developing the AED regulations, CBP
has considered all of the parameters.
For this rule, USPS is the party responsible for providing AED to
CBP. Throughout the development of the AED pilot and this interim final
rule, CBP gathered information from the USPS about its business
practices, the international mail system, and how to best formulate the
mandatory AED requirements to take these business practices into
consideration in developing a regulatory program that addressed the
relevant security and public health concerns. As a result of these
consultations, CBP has been able to develop AED regulations that, in
accordance with the parameters of the Trade Act of 2002, balance the
expected improvements in cargo safety and security with the impact of
the regulations on the flow of commerce, and take into consideration
existing standard business practices and interactions among
stakeholders.
In developing these regulations, CBP also considered both the
process and information flow with regard to the movement of
international mail to the United States and international efforts
[[Page 14255]]
to develop AED requirements. As described in section III.C (AED and the
Mail System), the information regarding the item to be shipped to the
United States is provided by the foreign sender to the FPO, the FPO
provides the information to USPS, and USPS provides the information to
CBP. Although the current process for providing the data is often a
paper-based process, under the provisions of this rule, the pertinent
information must be provided by USPS to CBP electronically in advance,
i.e., as AED. It is important to note that the ITMATT data that USPS
must provide to CBP electronically under this rule is the same data
that USPS receives from the FPO via the customs declarations forms,
which CBP is able to access when packages are presented for
inspection.\62\ Similarly, the PREDES data is the same information that
USPS receives from the FPOs on certain UPU forms.\63\ The key
difference is that under this rule CBP will receive the data in
electronic form prior to the arrival of the mail shipments, which will
allow for sophisticated and more effective targeting than the pre-rule
paper- based process. Under the pilot programs between CBP and USPS and
when information sharing agreements exist between the USPS and other
FPOs, USPS has also been providing this information, as well as PREDES
information, electronically. However, under these arrangements, the
furnishing of this advance information is voluntary and does not cover
all mail shipments. Under this rule, the data must be transmitted
electronically and in advance in all instances, subject to the
graduated compliance provided for in the new regulations.\64\
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\62\ See footnote 36 for more details.
\63\ As noted above in Section III.C.2 (Current CBP Requirements
for Mail Shipments to the U.S.) and in footnotes 41 and 42, this
``dispatch level information'' includes information relating to the
origin and destination post, dispatch number, date of departure of
the transporting conveyance, scheduled international mail facility,
total weight of dispatch, and similar information for receptacles
contained within the dispatch. This information is provided to USPS
via UPU forms CN 31, 32 and 87. In the AED environment, this is
referred to as ``PREDES''.
\64\ As provided in section 343 (a)(3)(K)(iv) of the Trade Act
of 2002 (19 U.S.C. 1415(a)(3)(K)(iv) and the new regulations, USPS
will be required to provide AED on 100% of mail shipments no later
than December 31, 2020.
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As discussed in section III.C.4 (International Framework for the
Provision of AED for Mail Shipments), in the international arena,
various efforts are underway to provide for the exchange of AED. The
AED referenced in Article 8 (Postal Security) of the Universal Postal
Convention is the same type of data that is currently provided through
paper forms. The pre-loading data provided pursuant to the WCO SAFE
Framework of Standards PLACI regime is comparable to what USPS will be
required to provide to CBP under this rule. Thus, the AED requirements
in this rule are consistent with existing international programs.
To implement the AED requirements, CBP is adding a new subpart G to
19 CFR part 145, titled Mandatory Advance Electronic Data for Mail
Shipments, and making certain conforming revisions to 19 CFR 145.0.
Additionally, CBP is revising 19 CFR parts 4, 122, 123, and 149 to
clarify that the AED requirements for mail importations are found in
part 145.
A. New 19 CFR Part 145, Subpart G
The new subpart G of 19 CFR part 145, titled Mandatory Advance
Electronic Data for Mail Shipments, adds three new sections to the
regulations. New Sec. 145.73 adds various definitions specific to the
subpart. New Sec. 145.74 provides details regarding the mandatory AED
that CBP must receive from USPS. New Sec. 145.75 provides the
applicable penalties if USPS accepts a shipment in violation of the
regulations.
B. Definitions
The new 19 CFR 145.73 provides definitions for terms as they are
used in the new subpart G. Specifically, for purposes of this subpart
the terms Designated operator, Express Mail Service or EMS,
International Mail Facility or IMF, Item ID,\65\ Letter class mail--
documents,\66\ Letter class mail--goods, Parcel post, and Universal
Postal Union or UPU are defined as set out in the regulatory text
below.
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\65\ For example, the UPU Technical Standard S10. UPU standards
(both technical and messaging) are available for purchase
(subscription or individual copy) via the UPU website at
www.upu.int/en/activities/standards/about-standards.html.
\66\ As noted in section III.C.2 (Current CBP Regulatory
Requirements for Mail Shipments to the United States), 19 CFR 145.1
provides definitions for mail article and letter class mail. 19 CFR
145.1(a) defines mail article as any posted parcel, packet, package,
envelope, letter, aerogramme, box, card, or similar article or
container, or any contents thereof, which is transmitted in mail
subject to customs examination. 19 CFR 145.1(b) defines letter class
mail as any mail article, including packages, post cards, and
aerogrammes, mailed at the letter rate or equivalent class or
category of postage. These definitions will not change as a result
of this rulemaking. New 19 CFR 145.73 adds additional definitions
relevant to the new AED regulations.
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C. Mandatory Advance Electronic Data (AED)
1. General Requirements
The new AED regulation, 19 CFR 145.74, provides that pursuant to
section 343(a)(3)(K) of the Trade Act of 2002 (Pub. L. 107-210, 19
U.S.C. 1415), as amended, for certain inbound international mail
shipments, CBP must electronically receive from USPS within the
specified time frames certain mandatory advance electronic data (AED)
and updates thereto. Below, we describe the new program, including the
types of inbound international mail shipments for which AED is
required, the time frames for providing and updating AED, the required
AED, the potential exclusion from AED requirements for mail shipments
from specific countries, compliance dates, and the expected actions for
shipments for which USPS has not complied with the AED requirements.
2. Types of Inbound International Mail Shipments for Which AED Is
Required
The new 19 CFR 145.74(b) provides that CBP must electronically
receive AED from USPS for inbound international mail shipments
containing goods classified as Express Mail Service (EMS), Parcel post,
or Letter class mail--goods, unless CBP has informed USPS that mail
shipments from that specific country or countries are excluded from the
AED requirements. AED is not required for Letter class mail--documents
or for items for the blind consisting of correspondence, literature in
whatever format including sound recordings, and equipment or materials
of any kind made or adapted to assist blind persons in overcoming the
problems of blindness (up to 7 kilograms). Each of these terms is
defined in new Sec. 145.73. Under this rule, AED will not be required
for items sent as Parcel Post or EMS that do not contain goods. AED
will also not be required for returned U.S. origin items, items
transiting the U.S. in closed transit, items sent as U.S. domestic
mail, or mail treated as domestic, including mail to or from APO, FPO,
and DPO addresses, mail to or from U.S. territories and possessions,
and mail, from or between the Freely Associated States of the Federated
States of Micronesia, the Republic of the Marshall Islands, and the
Republic of Palau. However, this exclusion does not preclude CBP's
existing authority to inspect any of these shipments. The scope of the
new requirements is comparable to the scope of the requirements for
advance electronic information for non-mail shipments. Advance
electronic information for non-mail shipments is not currently required
for letters and documents by the regulations promulgated under the
Trade Act of 2002, as detailed in the
[[Page 14256]]
preamble to the Trade Act final rule. See 68 FR 68140, 68150 (Dec. 5,
2003).\67\
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\67\ The scope of the AED regulations for inbound international
mail shipments is generally consistent with Article 08-002 of the
Universal Postal Convention Regulations. See Universal Postal
Convention Manual: http://www.upu.int/en/the-upu/acts-of-the-union-and-other-decisions/manuals-in-three-volumes.html (last accessed:
March 16, 2020).
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3. Time Frames for Providing and Updating AED
Under the Trade Act of 2002, as amended by the STOP Act, the time
frame for submitting the AED for mail shipments must be as soon as
practicable in relation to the transportation of the shipment,
consistent with section 343(a)(3)(H) of the Trade Act of 2002. See 19
U.S.C. 1415(a)(3)(H).\68\ The new 19 CFR 145.74(c) specifies the time
frames for USPS to provide and update the AED. CBP must electronically
receive from USPS the AED as soon as practicable, but no later than
prior to loading the inbound international mail shipment onto the
transporting conveyance. The as soon as practicable but no later than
prior to loading time frame is the same time frame as in the ACAS
regulations. See 19 CFR 122.48b(b)(1). Additionally, CBP must
electronically receive from USPS updates to the AED, if any of the
submitted data changes or more accurate data becomes available after
USPS transmits the AED, up until the timeframes for AED updates set
forth in the ACAS regulations in 19 CFR 122.48b(b)(2). The requirement
to provide and update AED is the same as the current AED requirements
for commercial cargo shipments. These time frames are consistent with
the PLACI time frame of the SAFE Framework of Standards. In the
interest of facilitating the objectives of the STOP Act and these
regulations, USPS may continue to submit updates until the mail
shipment arrives at the first CBP port of arrival in the United States.
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\68\ Section 343(a)(3)(H) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)(H)) provides that when determining the timing for
transmittal of any information, the Secretary shall balance likely
impact on flow of commerce with impact on cargo safety and security.
With respect to requirements that may be imposed on carriers of
cargo, the timing for transmittal of information shall take into
account differences among different modes of transportation, as
described in subparagraph (D).
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4. Required AED
Under the Trade Act of 2002, as amended by the STOP Act, the
required AED for international mail shipments is the information the
Secretary determines is reasonably necessary to ensure cargo safety and
security that is comparable to what is required for similar non-mail
shipments, taking into account the parameters set forth in the Trade
Act of 2002. The required AED is listed in the new 19 CFR 145.74(d).
The AED that CBP must electronically receive from USPS within the
specified time frames is the item attribute information and the pre-
advice of despatch information, both described in more detail below.
Some of this data is mandatory and other data elements are optional,
but encouraged. The provided AED will only be used to the extent
consistent with the Trade Act of 2002.
a. Item Attribute Information
The new 19 CFR 145.74(d)(1) sets forth the required AED categorized
as item attribute information, that is, information about the
attributes or characteristics of mail items and their contents. USPS
receives the item attribute or ``ITMATT'' information from the origin
post. USPS may then transmit this information to CBP in an electronic
message that is the customs declaration equivalent to the paper
declaration forms.\69\
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\69\ As noted earlier, these are the UPU forms CN 22 and CN 23.
For more information, see Section III.C.1 (International Mail System
for Inbound Mail) and footnotes 36, and Section III.C.2 (Current CBP
Requirements for Mail Shipments to the U.S.) and footnote 40.
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The required data elements are listed below. An ``M'' next to any
listed data element indicates that the data element is mandatory in all
cases and an ``O'' next to the listed data element indicates that the
data element is optional, but encouraged if available. The AED elements
categorized as item attribute information are:
(1) Sender's Name (M);
(2) Sender's Address (M);
(3) Sender's Telephone/fax/email (O);
(4) Recipient's Name (M);
(5) Recipient's Address (M);
(6) Recipient's Telephone/fax/email (O);
(7) Detailed description of contents (M);
(8) Quantity (M);
(9) Weight (M);
(10) Item ID (M);
(11) Category of Item (gift, documents, sale of goods, commercial
sample, merchandise, returned goods, other) (O);
(12) Declared Value (M) *;
(13) Date of Posting (O);
(14) Postal Charges/Fees (O);
(15) 10-digit HS Tariff Number (for commercial items) (O);
(16) Country of Origin of Goods (for commercial items) (O);
(17) Importer's reference (tax code, VAT number, importer number,
etc.) (O);
(18) Importer's telephone/fax/email (O);
(19) License Number (O);
(20) Certificate Number (O);
(21) Invoice Number (O);
(22) Details if the goods are subject to quarantine, sanitary/
phytosanitary inspection, or other restrictions (O); and
(23) Designated operator (M) *.
As noted previously, this required AED is aligned to the
information already required on customs declarations forms that satisfy
the requirements of 19 CFR 145.11 and are used by FPOs internationally
pursuant to the guidelines set forth by the UPU. This alignment is
consistent with the Trade Act of 2002 parameters, specifically 19
U.S.C. 1415(a)(3)(B), which provides that where it is not practicable
to require information from the party with direct knowledge of that
information, the regulations shall take into account how, under
ordinary commercial practices, information is acquired by the party on
which the requirement is imposed, and whether and how such party is
able to verify the information. The majority of the mandatory data
elements are also in line with the globally recognized PLACI data
elements and with requirements for non-mail shipments, particularly the
ACAS requirements for air cargo. The two exceptions, Declared Value and
Designated Operator,\70\ are noted with an asterisk in the list above.
CBP is requiring USPS to provide these data elements to CBP because
these data elements are globally recognized as mandatory.\71\ In the
AED environment, USPS can easily provide this data (Declared Value, and
Designated Operator) to CBP, and this data, along with the other
required data, is valuable for targeting purposes to identify high-risk
shipments. Although CBP is only making mandatory the data elements that
are currently mandatory on the paper forms, CBP encourages USPS to
transmit all available data elements to CBP in order for CBP to better
target incoming mail.
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\70\ As defined in new 19 CFR 145.73, ``Designated operator''
means an entity officially designated by a member country of the UPU
to operate postal services and fulfill its treaty obligations to the
UPU. USPS is considered a designated operator for the United States.
\71\ These are the UPU forms CN 22 and CN 23. CBP accepts these
forms as satisfactory for the requirements of a customs declaration
under 19 CFR 145.11. For more information, see Section III.C.1
(International Mail System for Inbound Mail) and footnotes 36, and
Section III.C.2 (Current CBP Requirements for Mail Shipments to the
U.S.) and footnote 40.
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b. Pre-Advice of Despatch Information
In addition to the information about each mail item, the required
AED also includes information about the
[[Page 14257]]
shipment, referred to as the ``dispatch'' or ``despatch,'' of mail
receptacles of the same mail category and class sent from one post to
another. As noted above, individual receptacles in one dispatch, may
not arrive in the United States together as a unit. Dispatch level
information helps CBP to identify where the mail items are likely to be
and when they should arrive. This information is comparable to the
shipment information CBP requires for non-mail shipments under the
Trade Act final rule. However, it is tailored to align with the way
mail is shipped (i.e., in dispatches containing receptacles), the way
information is provided by the origin post to USPS, and where the mail
arrives. USPS receives the ``pre-advice of dispatch'' or ``PREDES''
information from the foreign post. USPS may transmit this information
to CBP in an electronic message. The new 19 CFR 145.74(d)(2) lists the
required AED categorized as ``pre-advice of despatch information,'' as
follows:
(1) Dispatch information including origin post, destination post,
and dispatch number;
(2) Scheduled date and time of departure of the transporting
conveyance;
(3) Scheduled date and time of arrival in the United States;
(4) Transportation information including carrier and, as
applicable, flight number, voyage number, trip number, and/or
transportation reference number;
(5) Scheduled International Mail Facility (IMF) in the United
States;
(6) Total weight of the dispatch; and
(7) The information for receptacles contained within the dispatch,
including receptacle type, receptacle ID, and weight, as well as item
ID for items nested to the receptacles, if applicable.
5. Exclusions From AED Requirements for Mail Shipments From Specific
Countries
Under the Trade Act of 2002, as amended by the STOP Act, CBP, in
consultation with USPS, may determine to exclude a country from the AED
requirements if CBP determines that certain specified conditions exist.
New 19 CFR 145.74(e) incorporates this provision. It provides that
pursuant to section 343(a)(3)(K)(vi) of the Trade Act of 2002 (19
U.S.C. 1415(a)(3)(K)(vi)), CBP, in consultation with USPS, may
determine that a specific country or countries do not have the capacity
to collect and transmit AED, represent a low risk for mail shipments
that violate relevant U.S. laws and regulations, and account for low
volumes of mail shipments that can be effectively screened for
compliance with relevant U.S. laws and regulations through an alternate
means. It further provides that in such case(s), CBP will notify USPS
that mail shipments from that specific country or countries are
excluded from the AED requirements. Section 145.75(e) also provides
that CBP will re-evaluate these determinations on an annual basis. This
provision aligns not only with new section 343(a)(3)(K)(vi) of the
Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)), but also with the
parameters set forth at section 343(a)(3)(E) of the Trade Act of 2002
(19 U.S.C. 1415(a)(3)(E)), which requires regulations to take into
account the extent to which the technology necessary for parties to
transmit data is available.
6. Compliance Dates
The Trade Act of 2002, as amended by the STOP Act, specifies that
USPS must fully comply with the AED requirements no later than December
31, 2020, but allows for the implementation of the AED requirement in
phases prior to that date. Pursuant to the statute, CBP may set
incremental targets for the transmission of AED prior to December 31,
2020 that take into consideration the risk posed by such shipments, the
volume of mail shipped to the United States by or through a particular
country, and the capacities of foreign postal operators to provide that
information to USPS. See section 343(a)(3)(K)(iv) of the Trade Act of
2002 (19 U.S.C. 1415(a)(3)(K)(iv)).
New 19 CFR 145.74(f) provides that full compliance is required no
later than December 31, 2020, as set forth in section 343(a)(3)(K)(vi)
of the Trade Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)). This means
that, except for mail shipments from countries that are excluded from
AED requirements pursuant to new 19 CFR 145.74(e), USPS must comply
with the AED requirements of this section for 100 percent of mail
shipments described in new 19 CFR 145.74(b) no later than December 31,
2020.
7. Shipments for Which USPS Has Not Complied With the AED Requirements
The Trade Act of 2002, as amended by the STOP Act, sets forth the
actions to be taken for shipments for which USPS has not complied with
the AED requirements. New 19 CFR 145.74(g) incorporates these
provisions. Under new 19 CFR 145.74(g)(1), pursuant to section
343(a)(3)(K)(vii) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)(K)(vii)), USPS must, in consultation with CBP, refuse any
shipments received after December 31, 2020, for which the required AED
is not received by CBP, unless remedial action is warranted in lieu of
refusal of a shipment. If remedial action is warranted, CBP and USPS
will determine the appropriate remedial action. Remedial action may
include, but is not limited to, destruction, seizure, controlled
delivery or other law enforcement initiatives, or a correction of the
failure to provide the AED. Pursuant to an amendment to the Trade Act
of 2002 that was included in Sec. 802, Consolidated Appropriations Act,
2021, Pub. L. 116-260, new 19 CFR 145.74(g)(2) provides that,
notwithstanding paragraph (g)(1) of the section, during the period
beginning on January 1, 2021, through March 15, 2021, the Postmaster
General may accept a shipment without transmission of the information
described in paragraph (d) of the section if the Commissioner
determines, or concurs with the determination of the Postmaster
General, that the shipment presents a low risk of violating any
relevant United States statutes or regulations, including statutes or
regulations relating to the importation of controlled substances such
as fentanyl and other synthetic opioids.
D. Penalties
Section 8007 of the STOP Act amends section 436 of the Tariff Act
of 1930 (19 U.S.C. 1436) to add a new paragraph (e), which mandates the
imposition of civil penalties for certain violations of the STOP Act.
Specifically, new 19 U.S.C. 1436(e)(1) provides that a civil penalty
``shall be imposed against the United States Postal Service if the
Postal Service accepts a shipment in violation of section
1415(a)(3)(K)(vii)(I) of this title.'' To implement this statutory
provision, CBP is adding a new 19 CFR 145.75. This new section provides
that a violation of the new 19 CFR 145.74(g) after December 31, 2020,
will result in the USPS being liable for penalties in accordance with
19 U.S.C. 1436(e)(1). The amount of the penalty will be $5,000 per
violation, however, as provided by 19 U.S.C. 1436(e)(2), the penalty
will be reduced or dismissed based on certain factors.
E. Amendment to 19 CFR 145.0
Current 19 CFR 145.0 specifies the scope of 19 CFR part 145. CBP is
expanding the scope to account for the addition of the new subpart G.
Accordingly, a new sentence stating that the part also contains
regulations requiring USPS to transmit certain AED to CBP for certain
inbound international mail shipments is added at the end of the
section.
[[Page 14258]]
F. Amendment to Other Parts of 19 CFR Chapter I
The AED requirements in 19 CFR 145.74 applicable to inbound
international mail shipments are intended to be the only AED
requirements applicable to USPS for inbound international mail
shipments. Accordingly, CBP is making revisions to 19 CFR parts 4, 122,
123, and 149 to clarify that the AED requirements for mail importations
are found in part 145.
G. Flexible Enforcement
In order to provide the USPS sufficient time to adjust to the new
requirements and in consideration of the business process changes that
may be necessary to achieve full compliance, CBP will show restraint in
enforcing the data submission requirements of the rule, taking into
account difficulties USPS may face in complying with the rule, so long
as USPS is making significant progress toward compliance and is making
a good faith effort to comply with the rule to the extent of its
current ability. This CBP policy will last for twelve months after the
effective date. While full enforcement will be phased in over this
twelve month period, willful and egregious violations will be subject
to enforcement actions at all times. CBP welcomes comments on this
enforcement policy.
V. Statutory and Regulatory Reviews
A. Adminstrative Procedure Act
The Administrative Procedure Act (APA) generally requires agencies
to publish a notice of proposed rulemaking in the Federal Register and
to provide interested persons the opportunity to submit comments. 5
U.S.C. 553(b), (c). The APA also generally requires agencies to delay
the effective date of substantive rules by no less than 30 days. 5
U.S.C. 553(d). However, the APA enumerates certain exceptions to these
requirements. 5 U.S.C. 553(b)(A), (B). The APA provides an exception
from notice and comment procedures ``when the agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). The APA also provides an exception from the 30-day
delayed effective date requirement ``as otherwise provided by the
agency for good cause found and published with the rule.'' 5 U.S.C.
553(d)(3). These exceptions to notice-and-comment procedures are to be
``narrowly construed'' and only ``reluctantly countenanced.'' New
Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980). Courts have found
``good cause'' to be a permissible exception where ``the delay created
by the notice and comment requirements would result in serious damage
to important interests.'' Woods Psychiatric Inst. v. United States, 20
Cl. Ct. T324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991)
(absence of relevant comprehensive regulations had led to
administrative difficulties and litigation regarding basic issues such
as eligibility, scope and reasonable charges for benefits and delay
would have caused medical and financial hardships for beneficiaries);
see also Nat'l Fed'n of Fed. Emps. v. Nat'l Treasury Emps. Union, 671
F.2d 607, 611 (D.C. Cir. 1982) (lacking information on insurance
contract terms due to circumstances beyond its control, the agency
elected to delay ``open season'' because failure to do so would
threaten the financial stability of the Federal employee health benefit
program constituting a threat to the welfare of employees and
annuitants enrolled in that program). These interests include public
safety and public health. United States v. Dean, 604 F.3d 1275, 1279
(11th Cir. 2010) (to delay regulations would harm the public interest
because it would delay the registration of sex offenders who would
evade registration requirements during the notice and comment period,
putting the public's safety at risk).
This rule is being promulgated pursuant to the STOP Act to fight
the influx of deadly opioids, particularly synthetic opioids such as
fentanyl, coming to the United States in international mail shipments.
Given the critical public health and safety implications of continued
shipments of illegal opioids into the United States, to delay the
implementation of this rule would be ``impracticable, unnecessary, and
contrary to the public interest'' as it would allow a gap that invites
illegal and toxic drugs into our communities. There is particular
urgency in view of recent and current events, connected with the COVID-
19 pandemic and a significant spike in deaths as a result of opioids.
On January 7, 2021, the Secretary of Health and Human Services renewed
public health emergency declarations for both the opioid crisis \72\
and COVID-19 pandemic.\73\ Additionally, and critically, CDC has
reported an accelerating rate of overdose deaths during the COVID
pandemic, with the highest number of such deaths ever recorded in a 12-
month period.\74\ The CDC has found ``an acceleration of overdose
deaths during the pandemic.'' This is a testament to the imminent risk
of having these types of goods enter the U.S. mail stream and thus
endanger public health. In view of the recent declarations and the
recent acceleration in overdose deaths, a delay would clearly be
``contrary to the public interest.''
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\72\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/opioids-7Jan2021.aspx.
\73\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-07Jan2021.aspx; see also White House, Notice on the
Continuation of the National Emergency Concerning the Coronavirus
Disease 2019 (COVID-19) Pandemic, February 24, 2021. Available at
https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/notice-on-the-continuation-of-the-national-emergency-concerning-the-coronavirus-disease-2019-covid-19-pandemic/ (last
accessed February 24, 2021).
\74\ Centers for Disease Control, Press Release, Overdose Deaths
Accelerated During COVID-19: Expanded Prevention Efforts Needed,
December 17, 2020, available at https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html (last accessed February 20,
2021).
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The recent and marked increase in demand for opioids by Americans
has had a detrimental impact on this country as seen by the sharp rise
in overdoses and the increased strain placed on law enforcement,
healthcare, and social service providers. According to the CDC, the
COVID-19 pandemic has accelerated drug overdose deaths, resulting in
over 81,000 drug overdose deaths in the 12-month period ending in May
2020. CDC notes that ``synthetic opioids (primarily illicitly
manufactured fentanyl) appear to be the driver,'' increasing 38.4
percent relative to the prior year. Ten western states reported a more
than 98 percent increase in synthetic opioid-involved deaths over the
same period.\75\ CBP is a vital line of defense to secure the border,
and needs to move toward improving its ability to detect and interdict
illicit supply chains in the postal environment.
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\75\ Centers for Disease Control, Press Release, Overdose Deaths
Accelerated During COVID-19: Expanded Prevention Efforts Needed,
December 17, 2020, available at https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html (last accessed February 20,
2021).
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One of the greatest challenges to effective interdiction is the
sheer volume of mail received. The use of AED for mail shipments will
thus facilitate the interdiction of suspect packages, a critical tool
in stemming the flow of deadly opioids. Requiring AED for mail
shipments will enhance the security of the supply chain with respect to
international mail shipments by giving CBP adequate time and
information necessary to perform targeted risk assessments geared
towards interdicting dangerous and illicit items before they enter the
U.S. mail system. For further details
[[Page 14259]]
regarding the benefits of the rule, see sections III.A (Purpose of
Rule), V.B (Executive Orders 12866 and 13563), and the stand-alone
regulatory impact analysis.\76\
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\76\ CBP prepared a regulatory impact analysis of the estimated
impacts of this rule for public awareness, which CBP summarizes in
the sections below. The complete analysis, entitled Mandatory
Advance Electronic Information for Postal Shipments, can be found in
the public docket for this rulemaking (docket number USCBP-2021-
0009) at www.regulations.gov.
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Where an agency reasonably determines that existing regulations do
not sufficiently protect public safety, authorized measures to address
the regulatory deficiency need not await the completion of notice and
comment procedures to begin saving lives. See Hawaii Helicopter
Operators Ass'n v. FAA, 51 F.3d 212, 213-14 (9th Cir. 1995). This is
especially true with respect to measures taken to prevent the
exploitation of security or public health vulnerabilities, which do not
involve ``complex and controversial questions of ethics and public
policy.'' Cf. American Academy of Pediatrics v. Heckler, 561 F. Supp.
395, 401 (D.D.C. 1983). This is the case here. It is DHS's
determination that the relevant existing regulatory framework does not
sufficiently protect public safety, and in the context of a public
health crisis of this magnitude every day is important. In fact, no
regulations exist at this time that require USPS to provide CBP with
AED. These regulations, promulgated pursuant to the STOP Act, aim to
address this regulatory deficiency, and as such, they need not await
the completion of notice and comment procedures or the 30-day delayed
effective date period. See Hawaii Helicopter Operators Ass'n v. FAA, 51
F.3d 212, 213-14 (9th Cir. 1995). In filling the regulatory gap, this
rule will have a substantial impact on stemming the flow of illicit
drugs. As detailed above, the use of AED in targeting and risk
mitigation will help CBP disrupt the supply chain of illicit opioids by
reducing the amount of illicit opioids entering the country. This, in
turn, should lead to a decrease in lives lost to this epidemic.
For the same reasons that the new regulations will address the
regulatory gap described above, delaying the implementation of these
regulations could result in serious harm to public health and safety by
continuing to allow the illicit flow of opioids into the country while
the procedural periods elapse. The agency ``only has to show that there
is good cause to believe that delay would do real harm.'' United States
v. Dean, 604 F.3d 1275, 1281 (11th Cir. 2010) (quoting Jifry v. FAA,
370 F.3d 1174, 1179 (D.C. Cir. 2004)). This is especially the case in
the context of vulnerabilities that may be susceptible to exploitation,
including in the context of an escalating public health crisis of this
magnitude or in the case of a significant public safety concern. It is
therefore sufficient for the agency to make a reasonable determination
that a vulnerability exists that the proposed lawful rule would
effectively mitigate and for that reason determine that a delay in
promulgation would cause serious and immediate harm. See Jifry, 370
F.3d at 1179; Dean, 604 F.3d at 1281. In the absence of prior
regulations that mandate USPS to transmit AED to CBP, the use of notice
and comment prior to the issuance of this rule would delay CBP's
ability to take immediate and effective action to keep illicit
shipments of all kinds out of the supply chain.
Such a delay might well lead as well to an influx of illicit
shipments before the rule was issued and took effect. To delay the
implementation of effective mitigation measures in this way would
unreasonably prolong the public's exposure to high levels of illicit
opioids and their analogues. On that basis, it is reasonable for DHS to
determine that it may, for good cause, forgo the usual prior notice and
comment and delayed effective date procedure and publish a rule that is
effective immediately.
B. Executive Orders 12866 and 13563
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. This rule is a ``significant regulatory
action,'' and one that the Office of Information and Regulatory Affairs
has determined is economically significant under section 3(f) of
Executive Order 12866. Accordingly, this rule has been reviewed by the
Office of Management and Budget (``OMB''). CBP prepared an economic
analysis of the estimated impacts of this rule for public awareness,
which CBP summarizes below. The complete analysis, entitled
``Regulatory Impact Analysis: Mandatory Advance Electronic Data (AED)
for International Postal Shipment Final Rule'' can be found in the
public docket for this rulemaking (docket number USCBP-2021-0009) at
www.regulations.gov. The complete economic impact analysis of this rule
is intended to address the requirements of Executive Order 12866
(1993), ``Regulatory Planning and Review'' and related executive orders
and laws, which require Federal agencies to assess the costs and
benefits of significant regulatory actions.
1. Purpose of Rule
CBP has developed this interim final rule requiring the submission
of advance electronic data (AED) from the United States Postal Service
(USPS) for inbound international mail shipments containing goods
destined for the United States. This interim final rule follows from
the requirements mandated in section 8003 of the Synthetics Trafficking
and Overdose Prevention (STOP) Act of 2018, principally intended to
lessen the flow of illegal opioids into the United States. The STOP Act
imposes new responsibilities on the USPS for providing AED for
international mail.
AED contains details about the package's sender, recipient, and
related content that have historically been available to USPS on
customs declaration forms but only in paper copies, making it difficult
for CBP to use the information for targeting of mail containing illegal
goods. Requiring USPS to provide CBP with AED will address a current
safety and security gap regarding mail importations. Having this data
available in electronic format and submitted to CBP before the package
is loaded on the transporting carrier is expected to improve the
success and efficiency of targeting packages for inspection and to
disrupt the supply chain for illegal opioids, particularly synthetic
fentanyl.\77\ Fentanyl is one of many synthetic opioids that are
produced in both licit and illicit manners. Many chemical compounds--
commonly known as fentanyl analogs--share the majority of their
chemical structure with fentanyl, albeit with some molecular
modifications. In this report, we refer to this class of substances as
fentanyl for simplicity and to reflect its share among synthetic
opioids. While synthetic fentanyl is the primary motivation behind the
STOP Act, the interim final rule will also
[[Page 14260]]
improve CBP's ability to identify and seize other illegal and dangerous
items (including other illegal drugs, other hazardous materials, etc.)
and close the gap that has the potential to be exploited by bad actors.
With the implementation of this interim final rule, CBP regulations
will require the transmission of AED on all shipments of goods, whether
or not they are transported through the international mail system.
---------------------------------------------------------------------------
\77\ U.S. Drug Enforcement Administration, National Forensic
Laboratory Information System: Special Maps Release: Tracking
Fentanyl and Fentanyl-Related Substances Reported in NFLIS-Drug by
State, 2016-2017, Washington, DC: Department of Justice (2019)
(``DEA, Tracking Fentanyl and Fentanyl-Related Substances'').
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Beginning in 2014, CBP and USPS piloted programs at IMFs around the
United States to collect AED from foreign posts (i.e., non-U.S. postal
operators, analogous to the USPS in the United States) to improve CBP's
targeting efforts. As required by the STOP Act and informed by the
results of the pilots,\78\ CBP has developed an interim final rule to
transition the AED pilot program to a regulatory program.\79\
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\78\ U.S. Customs and Border Protection. International Mail
Security: Advance Electronic Data (AED) Cost Benefit Analysis of
Inbound International Mail at JFK (DHS/CBP/OT/ORR/EIA Branch 2018)
(``CBP, International Mail Security'').
\79\ CBP prepared its assessment (CBP, International Mail
Security) of the costs and benefits of implementing the JFK IMF
pilot in 2017 in response to a recommendation from the Government
Accountability Office (GAO). U.S. Government Accountability Office,
International Mail Security: Costs and Benefits of Using Electronic
Data to Screen Mail Need to be Assessed, Report to Congressional
Requesters. GAO-17-606. (2017, p. 1) (GAO, International Mail
Security, Report to Congressional Requesters).
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The interim final rule requires that CBP must receive AED from USPS
for inbound international mail containing goods classified as Letter
class mail--goods, Parcel post, or Express Mail Service (EMS). Letter
class mail--goods refers to letter class (in UPU terms, letter post)
mail up to two kilograms containing goods, also referred to as ``small
packets.'' Mail over two kilograms containing goods must use a postal
service other than letter class. Parcel post refers to any mail article
mailed at the parcel rate or equivalent class or category of postage.
EMS refers to the optional supplementary postal express service for
documents and merchandise and is whenever possible the quickest postal
service by physical means. Under this interim final rule, AED is not
required for mail containing only letters and documents (i.e., Letter
class mail--documents). AED will not be required for items for the
blind consisting of correspondence, literature in whatever format
including sound recordings, and equipment or materials of any kind made
or adapted to assist blind persons in overcoming the problems of
blindness (up to 7 kilograms). Under this rule, AED will not be
required for items sent as Parcel Post or EMS that do not contain
goods. AED will also not be required for returned U.S. origin items,
items transiting the U.S. in closed transit, items sent as U.S.
domestic mail, or mail treated as domestic, including mail to or from
APO, FPO, and DPO addresses, mail to or from U.S. territories and
possessions, and mail, from or between the Freely Associated States of
the Federated States of Micronesia, the Republic of the Marshall
Islands, and the Republic of Palau. However, this exclusion does not
preclude CBP's existing authority to inspect any of these shipments.
AED are comprised of two elements, as described in full detail in
Exhibit 1 and summarized below:
1. Information already collected through the customs declaration
forms CN 22 and CN 23, including the contents and value of the goods in
the package as well as sender and recipient information. USPS will
collect this information from its counterparts at foreign posts through
existing ``ITMATT'' electronic messages; and
2. Information about the movement of the shipment by a carrier,
including the scheduled date and time of arrival in the United States,
flight number, and destination IMF. USPS will collect this information
from its counterparts at foreign posts through existing ``PREDES''
electronic messages.
Exhibit 1--Mandatory and Optional AED Elements
------------------------------------------------------------------------
Data element Requirement
------------------------------------------------------------------------
ITMATT Contents:
Sender's name............................ Mandatory.
Sender's address......................... Mandatory.
Sender's telephone/fax/email............. Optional.
Recipient's name......................... Mandatory.
Recipient's address...................... Mandatory.
Recipient's telephone/fax/email.......... Optional.
Detailed description of contents......... Mandatory.
Quantity................................. Mandatory.
Weight................................... Mandatory.
Item ID.................................. Mandatory.
Category of item (gift, document, sale of Optional.
goods, commercial sample, merchandise,
returned goods, other).
Declared value........................... Mandatory.
Date of posting.......................... Optional.
Postal charges/fees...................... Optional.
10-digit HS tariff number (for commercial Optional.
items).
Country of origin of goods (for Optional.
commercial items).
Importer's reference (tax code, VAT Optional.
number, importer number, etc.).
Importer's telephone/fax/email........... Optional.
License number........................... Optional.
Certificate number....................... Optional.
Invoice number........................... Optional.
Details if the goods are subject to Optional.
quarantine, sanitary/phytosanitary
inspection, or other restrictions.
Designated operator...................... Mandatory.
PREDES Contents:
Dispatch information including origin, Mandatory.
destination, and dispatch number.
Scheduled date and time of departure of Mandatory.
transporting conveyance.
Scheduled date and time of arrival....... Mandatory.
Transportation information including Mandatory.
carrier and, as applicable, flight
number, voyage number, trip number, and/
or transportation reference number.
[[Page 14261]]
Scheduled International Mail Facility Mandatory.
(IMF).
Total weight of the dispatch............. Mandatory.
The information for receptacles contained Mandatory.
within the dispatch, including
receptacle type, receptacle ID, and
weight, as well as item ID for items
nested to the receptacles if applicable.
------------------------------------------------------------------------
Recognizing the magnitude of the change in operations necessary to
accommodate the international flow of AED, the STOP Act and this
interim final rule offer a phased approach to the mandatory AED
requirement. No later than the end of 2018, the Act required USPS to
transmit AED to CBP on no less than 70 percent of mail shipments,
including 100 percent of mail from China.\80\ No later than the end of
2020, USPS must transmit AED for 100 percent of mail. Beginning in
March 2021, USPS will be required to refuse mail shipments that do not
include AED, unless a ``remedial action'' is identified. Such action
may include destruction, seizure, controlled delivery, other law
enforcement action for mail without AED, or correction of the failure
to provide AED. The interim final rule allows that CBP and USPS create
country-specific exceptions for countries with low mail volume, that
are considered low-risk, or lack the capacity to collect and transmit
AED.
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\80\ These milestones were not met. Approximately 60 percent of
international packages were transported with AED by the of end 2018
(personal communication with CBP on May 1, 2019). USPS data from
March 2019, after the end-2018 requirement, reports 77 percent of
all packages were transported with AED--over the current requirement
threshold, but below the 100 percent.
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2. Overview of Analysis
In the complete economic impact analysis of this rule, we estimate
the incremental costs of implementing (1) AED pilot projects initiated
prior to the STOP Act and (2) the interim final rule. We also provide a
discussion of the anticipated benefits of the rule qualitatively. We
present information on the available data sources we rely upon and the
analytic methodologies we employ and discuss the implications of
limitations of the analysis.
Our analysis focuses on two discrete time periods. All incremental
costs and benefits of collecting and transmitting AED occurring in the
time period before the STOP Act was enacted into law are associated
with the pre-statute period, while all incremental costs and benefits
incurred after the STOP Act was enacted (i.e., post-statute period),
including current and future costs, are attributed to the interim final
rule. Taken together, the two time periods address the costs and
benefits of the entire AED program.
Pre-statute period: 2013 through 2018; and
Post-statute period: 2019 through 2028.
All costs are estimated in 2019 dollars, and present value
calculations reported in the document use a base year of 2019.\81\ CBP
summarizes the results of the rule's complete economic impact analysis
below.
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\81\ Figures in the exhibits are generally unrounded to provide
the detail necessary to recreate these calculations.
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Between 2014 and 2018, USPS worked with foreign postal operators to
collect available AED for CBP targeting of postal shipments across a
subset of IMFs. CBP's use of the AED, which is voluntarily provided by
foreign postal operators to USPS, is considered a pilot program to
determine how AED can improve CBP's targeting process. John F. Kennedy
International Airport (JFK) was the first IMF to launch a pilot in
2014, followed by Los Angeles International Airport (LAX) and Miami
International Airport (MIA) in 2017, Chicago O'Hare International
Airport (ORD) and San Francisco International Airport (SFO) in 2018,
and the New Jersey International and Bulk Mail facility located in
Jersey City, New Jersey (JEC) and the Daniel K. Inouye International
Airport (Honolulu International Airport) (HNL) in 2019. These pilots
have provided insight into how the interim final rule will be
implemented. Two more IMFs--Cyril E. King Airport (St. Thomas Airport)
(STT), and Luis Munoz Marin International Airport (San Juan Airport)
(SJU)--are expected to commence AED operations in 2020.
Furthermore, separate from the STOP Act, a desire to receive AED
has been gaining traction among other countries. Motivated by the
collection of goods and services (GST) tax on imported goods, the
European Union (EU) and Australia recently passed or are considering
legislation that would also require AED for inbound international mail.
Several other countries are also likely to impose AED requirements,
including but not limited to China, Russia, Malaysia, Brazil, and
Thailand.\82\ Beyond individual country initiatives, the UPU approved a
roadmap in 2016 for working toward universal AED capabilities among its
members.\83\
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\82\ Personal communication with UPU on May 1, 2019 and follow
up information provided via personal communication on May 10, 2019.
\83\ Universal Postal Union (UPU). (2017). ``Issues relating to
electronic advance data (EAD).'' Report of AED Roadmap steering
committee. Document number POC C 1 2017.2-Doc 6b.
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In consideration of the AED requirements passed by other countries,
as well as the general move towards storing information electronically,
foreign posts would need to make upgrades to their systems to
accommodate AED in the absence of the STOP Act and this interim final
rule. Nonetheless, the STOP Act plays a key role in accelerating the
adoption of AED internationally.\84\ Exhibit 2, below, illustrates our
assumptions regarding this acceleration, differences between the types
of actions taken, and the timing of these actions under the baseline
and regulatory scenarios. The differences between these two scenarios
represent the incremental effects measured in the analysis.
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\84\ Personal communication with representatives of the UPU on
May 1, 2019.
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[[Page 14263]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.001
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3. Population Affected by Rule
CBP and USPS are the two U.S.-based actors that incur costs in
response to the AED pilots and the requirements of the interim final
rule. All activities related to the collection, transmission, and use
of inbound AED are incremental to the rule. We summarize these cost
categories below.
4. Costs of Rule
CBP incurs costs to draft and negotiate agreements with USPS,
implement software upgrades to accommodate AED, train staff on the use
of AED for targeting, and analyze inbound AED at IMFs. Among the
categories of cost we are able to quantify, costs associated with
analyzing AED data and placing holds associated with the AED are the
largest, followed by the costs to upgrade software and, lastly, by the
time spent developing the MOU and SOPs with USPS. CBP also incurred
costs to train its staff to use AED; we are unable to quantify these
costs.
Exhibit 3 presents costs incurred by CBP to implement the pilot
program in the pre-statute period (2013 through 2018). Specifically,
its total present value cost over the 6-year period ranges from $19
million to $22 million, depending on the discount rate assumption (3
and 7 percent, respectively). Because we are unable to quantify CBP's
training costs, this estimate may understate total costs incurred by
the agency during the pre-statute period. However, these costs are
unlikely to be large enough to significantly impact our estimate of the
total cost of the regulation. Importantly, these costs have already
been incurred.
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[[Page 14264]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.002
Exhibit 4 provides estimates of the costs incurred by CBP in the
post-statute period (2019 through 2028). We estimate the total present
value of these costs will range from $41 million to $49 million,
assuming discount rates of 7 and 3 percent, respectively. The majority
of these costs are likely to be incurred in the future.\85\
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\85\ Importantly, the estimates presented in Exhibit 4 include
future costs that will be incurred by the five IMFs who participated
in the pilot program.
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[[Page 14265]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.003
BILLING CODE 9111-14-C
USPS also incurs costs to implement the new requirements.
Specifically, it must negotiate operational agreements with CBP at the
IMFs, negotiate data-sharing agreements with foreign posts, upgrade
software, train staff, process AED holds for CBP, and potentially
return mail to foreign posts that do not meet the mandatory AED
requirement. In this analysis, we quantify three of the six categories
of costs likely to be incurred by USPS. Among them the labor devoted to
processing holds for CBP constitutes a larger share than costs of
upgrading and maintaining software or the requirement to return mail.
Moreover, between the two periods examined, a majority of these costs
are incurred in the post-statute period. CBP does not expect USPS to
need to return mail without AED and this will not experience costs
associated with that return. To the extent that these costs do take
place, the costs of this rule will be higher. CBP requests comment on
the size of these costs.
Exhibit 5 presents the costs incurred by USPS in the pre-statute
period (2013 through 2018). The total present value of these past costs
is likely to range from $11 million to $13 million, assuming discount
rates of 3 and 7 percent, respectively. Because we are unable to
estimate the costs to USPS of developing MOUs and SOPs with CBP,
negotiating data sharing agreements with foreign posts, and training
its staff, these estimates may understate the actual costs incurred
during this period.
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[[Page 14266]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.004
Exhibit 6 presents the future costs likely to be incurred by USPS
in the post-statute period. Specifically, total present value costs are
likely to range from $41 million to $49 million, assuming discount
rates of 7 and 3 percent, respectively. Similar to the pre-statute
period, because we are unable to quantify certain categories of costs
incurred by USPS, these estimates may understate the total costs
experienced by the organization.
[[Page 14267]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.005
BILLING CODE 9111-14-C
Foreign posts around the world incur costs to upgrade and maintain
outbound AED systems in order to comply with the requirements of the
STOP Act. The STOP Act, however, is not the only international AED
requirement. As described earlier, it represents the first in a series
of similar requirements under development by other countries and
encouraged by the UPU. As a result, the costs foreign posts incur to
update their systems to accommodate the outbound flow of AED are not
fully attributable to the pilot or the interim final rule; foreign
posts would be making many of these upgrades to their systems in the
absence of the STOP Act. The law, however, accelerates their timeline
for having functional AED systems and capabilities in place.
In general, we consider when countries incur costs due to the
interim final rule relative to when they would incur similar costs to
comply with other mandatory AED requirements imposed by other
countries. In particular, the European Union AED rule is scheduled to
take effect in early 2021. The incremental cost of the pilot or interim
final rule, therefore, is the opportunity cost to foreign posts of
upgrading their systems earlier than they would have in the absence of
the STOP Act.
To estimate the opportunity cost of earlier action, we estimate the
stream of costs through time under the baseline scenario (i.e., the
world without the pilot or the interim final rule) and compare it to a
scenario with the pilot and the interim final rule, separately for the
pre-statute period and the post-statute period. The difference between
the present value of these two cost streams represents the incremental
costs of the pilot and the interim final rule.
Significant uncertainty exists regarding when certain countries
will be able to meet the requirements of the interim final rule. We
rely on analysis provided by the UPU to estimate which countries will
be able to send AED to the United States by December 31, 2020. For the
purposes of this analysis, we assume that all countries unable to send
AED to the United States by the end of 2020 will be granted exceptions
under
[[Page 14268]]
the interim final rule and will, therefore, not incur costs. In the
absence of data to predict which countries will be able to begin
transmitting AED between 2021 and 2028, we assume the number of
countries transmitting AED in years 2021 through 2028 does not change.
To the extent that more countries shift to AED submissions, costs will
be higher and will depend on the income level of the country and its
volume of mail. This analysis contains the necessary information on the
costs per country and by volume, so extending this analysis to further
countries can be done using the information in this analysis. Exhibit 7
describes the number of countries transmitting AED to the United
States, as well as the percent of packages from these countries
arriving with AED elements.
Exhibit 7--Foreign Postal Operators Transmitting AED to USPS and Percent of Parcels Arriving With AED
--------------------------------------------------------------------------------------------------------------------------------------------------------
High Income Countries Upper-Middle Income Lower-Middle Income Low Income Countries Other
-------------------------- Countries Countries -------------------------- Countries
Year ---------------------------------------------------- ------------
# % AED # % AED # % AED # % AED % AED
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014............................... 0 0.0 0 0.0 0 0.0 0 0.0 0.0
2015............................... 7 5.9 0 0.0 0 0.0 0 0.0 38.8
2016............................... 6 3.8 0 0.0 0 0.0 0 0.0 78.0
2017............................... 16 11.8 2 5.7 1 49.0 0 0.0 32.5
2018............................... 28 26.5 10 2.4 5 5.7 1 1.0 85.8
2019............................... 35 34.4 12 8.6 8 5.8 2 0.5 89.2
2020 (predicted)................... 50 67.2 21 54.3 8 52.9 2 50.3 94.6
2021 (predicted)................... 65 100.0 30 100.0 8 100.0 2 100.0 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: UPU divides foreign postal operators according to gross national incomes based on the World Bank stratification (https://datahelpdesk.worldbank.org/knowledgebase/articles/906519-world-bank-country-and-lending-groups). The number of countries in the Other category has
been redacted to preserve commercially sensitive business information.
Sources: Calculations for most countries come from the UPU. For countries for which the UPU could not provide data, we use data from a proprietary
source. See main text for details.
Foreign posts incur costs including the time devoted to negotiating
data-sharing agreements with USPS, the cost of upgrading software and
hardware to accommodate the outbound flow of AED, efforts spent
training staff on how to collect and transmit AED, and the costs
related to accepted packages rejected from the United States because
they do not meet mandatory AED requirements. Of these categories, the
largest costs are associated with manually entering AED for
transmission. The lowest cost categories are the one-time costs to
upgrade hardware and train employees, in part because these costs would
have been incurred--albeit in different years--in the absence of the
STOP Act.
---------------------------------------------------------------------------
\86\ We evaluate the significance of this assumption (future
mail volume) in Appendix B of the full Regulatory Impact Analysis,
which can be found in the docket of this rulemaking.
---------------------------------------------------------------------------
Exhibit 8 presents costs incurred by foreign posts in the pre-
statute period (2013 through 2018). Total present value costs range
from $46 million to $51 million, assuming discount rates of 3 and 7
percent, respectively. Nearly all of these costs (approximately 95
percent) result from the labor required to manually enter AED.
Importantly, these costs have already been incurred.
Exhibit 9 presents costs likely to be incurred by foreign posts in
the future, during the post-statute period (2019 through 2028). We
estimate the total present value costs are likely to range from $150
million to $170 million, assuming discount rates of 7 and 3 percent,
respectively. Labor costs associated with manually entering AED
comprise the majority of these costs. Because we assume the amount of
affected mail sent to the United States in future years remains
constant, annual costs from 2021 (the year the interim final rule takes
full effect) through 2028 are constant.\86\
BILLING CODE 9111-14-P
[[Page 14269]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.006
[[Page 14270]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.007
[[Page 14271]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.008
[[Page 14272]]
[GRAPHIC] [TIFF OMITTED] TR15MR21.009
BILLING CODE 9111-14-C
Exhibit 10 presents the combined cost of the rule in the United
States, including costs incurred by CBP and USPS. We estimate the total
present value cost incurred in the pre-statute period ranges from
approximately $29 million to $33 million, assuming discount rates of 3
and 7 percent, respectively. In the post-statute period, total present
value costs likely to be incurred by these entities range from $80
million to $94 million, assuming discount rates of 7 and 3 percent,
respectively. Over the combined 16-year period (2013 through 2028),
present value costs range from $110 million to $120 million, assuming
discount rates of 7 and 3 percent, respectively.
For the purpose of preparing the Circular A-4 (OMB 2003) accounting
statement (presented in Exhibits 13 and 14), we also estimate the equal
annual payment that would need to be made over the period of analysis
to achieve the present value costs estimated in Exhibit 10. On an
annualized basis, total costs in the post-statute period are
approximately $11 million, regardless of discount rate. Over the entire
16-year period, U.S. costs range from $7.7 to $8.3 million on an
annualized basis, assuming discount rates of 7 and 3 percent,
respectively. Annualized costs are smaller over the longer period
because the relatively larger costs incurred in the post-statute period
are spread over more years.
Exhibit 10--Total Present Value Costs of the IFR for U.S.-Based Actors
[2019 U.S. dollars, 2019 base year]
----------------------------------------------------------------------------------------------------------------
Pre-statute Post-statute
period (2013- period (2019- Overall (2013-
2018) 2028) 2028)
----------------------------------------------------------------------------------------------------------------
Undiscounted Values:
CBP......................................................... $17,236,559 $55,504,555 $72,741,113
[[Page 14273]]
USPS........................................................ 10,471,201 55,755,657 66,226,858
-----------------------------------------------
Total................................................... 27,707,760 111,260,212 138,967,971
Total Present Value:
3 percent................................................... 30,315,939 97,421,341 127,737,280
7 percent................................................... 34,173,540 82,932,789 117,106,328
Annualized:
3 percent................................................... .............. 11,088,110 8,268,550
7 percent................................................... .............. 11,035,293 7,719,980
----------------------------------------------------------------------------------------------------------------
Other Non-Quantified Costs:
Additional non-quantified costs include past and future training time for CBP and USPS staff, time spent by USPS
to develop and negotiate MOU and SOPs with CBP, and time spent by USPS to negotiate AED sharing agreements with
foreign posts. Furthermore, USPS will incur additional costs if it is required to separate, store, return, or
destroy mail that arrives without AED, and intended U.S. recipients of this mail will experience delay costs.
These costs will only result from long-term non-compliance, and CBP and USPS will continue to work with foreign
posts to ensure that this does not take place.
----------------------------------------------------------------------------------------------------------------
Source: IEc calculations using data from various sources. See main text for details.
Notes:
1. We estimate the annualized cost over the post-statute period (2019-2028) from the perspective of an
individual in 2019. This reflects the equal payment that would need to be made in each future year to equal
the total present value of the costs.
2. We estimate the annualized cost over the full period of analysis (2013-2028) from the perspective of an
individual in 2013, when U.S.-based actors started incurring costs related to the pilots. This reflects the
equal payment that would need to be made during the pre- and post-statute years to equal the total present
value of the costs.
3. Totals may not sum due to rounding.
Exhibit 11 presents the total cost of the pilot and interim final
rule, including costs incurred by both U.S. actors (CBP and USPS) and
non-U.S. actors (the foreign posts). Specifically, we estimate total
present value costs incurred in the pre-statute period are likely to
range from $76 million to $84 million, assuming discount rates of 3 and
7 percent, respectively. In the post-statute period, we estimate that
total present value costs are likely to range from $230 million to $270
million, assuming discount rates of 7 and 3 percent respectively. Over
the entire 16-year period, total present value costs range from $310
million to $340 million, assuming discount rates of 7 and 3 percent,
respectively.
On an annualized basis, total post-statute costs are estimated to
be approximately $30 million, regardless of the discount rate
assumption. Across the entire 16-year period, annualized costs range
from $21 million to $22 million, assuming discount rates of 7 and 3
percent respectively. We present these annualized estimates for
purposes of comparison with the estimates presented in Exhibit 10;
however, for purposes of the Circular A-4 accounting statement, we
focus on U.S.-based costs.\87\
---------------------------------------------------------------------------
\87\ OMB's Circular A-4 (p. 15) states ``Your analysis should
focus on benefits and costs that accrue to citizens and residents of
the United States.'' For this reason, we include only costs to U.S.
based actors in Exhibits 13 and 14.
Exhibit 11--Total Present Value Costs of the IFR for U.S. and Non-U.S. Based Actors
[2019 U.S. dollars, 2019 base year]
----------------------------------------------------------------------------------------------------------------
Pre-statute Post-statute
period (2013- period (2019- Overall (2013-
2018) 2028) 2028)
----------------------------------------------------------------------------------------------------------------
Undiscounted Values:
U.S. Based Subtotal......................................... $27,707,760 $111,260,212 $138,967,971
Non-U.S. Based Subtotal..................................... 43,243,315 196,433,167 239,676,483
-----------------------------------------------
Total................................................... 70,951,075 307,693,379 378,644,454
Total Present Value:
3 percent................................................... 76,734,894 269,689,624 346,424,517
7 percent................................................... 85,097,565 229,913,765 315,011,330
Annualized:
3 percent................................................... 30,695,001 22,424,373 ..............
7 percent................................................... 30,593,035 20,766,436 ..............
----------------------------------------------------------------------------------------------------------------
Other Non-Quantified Costs:
Additional non-quantified costs include past and future training time for CBP and USPS staff, time spent by USPS
to develop and negotiate MOU and SOPs with CBP, and time spent by USPS and foreign posts to negotiate AED
sharing agreements. Furthermore, USPS and/or foreign posts will incur additional costs if they are required to
separate, store, return, or destroy mail that arrives without AED, and intended U.S. recipients will experience
delay costs. These costs will only result from long-term non-compliance, and CBP and USPS will continue to work
with foreign posts to ensure that this does not take place.
----------------------------------------------------------------------------------------------------------------
Source: IEc calculations using data from various sources. See main text for details.
[[Page 14274]]
Notes:
1. We estimate the annualized cost over the post-statute period (2019-2028) from the perspective of an
individual in 2019. This reflects the equal payment that would need to be made in each future year to equal
the total present value of the costs.
2. We estimate the annualized cost over the full period of analysis (2013-2028) from the perspective of an
individual in 2013, when U.S.-based actors started incurring costs related to the pilots. This reflects the
equal payment that would need to be made during the pre- and post-statute years to equal the total present
value of the costs.
3. Totals may not sum due to rounding.
5. Benefits of Rule
The AED interim final rule represents an important component of
DHS's evolving layered strategy for limiting the flow of prohibited
goods entering the United States. The rule provides CBP with earlier
and more detailed information about international mail being received
at IMFs. Specifically, the rule requires the information to be provided
prior to loading the inbound mail shipment onto the transporting
conveyance. The principal benefit of the new rule will be more precise
identification of at-risk shipments at an earlier time. This
information will allow for better targeting and aims to improve CBP's
effectiveness in preventing prohibited mail items from entering the
commerce of the United States.
Our analysis examines how AED may reduce adverse opioid-related
outcomes. While this category of benefits is one of many possible
outcomes of the rule, our focus on opioids reflects the principal
objective of the STOP Act and the relative share of benefits that we
anticipate will be attributable to this category.\88\ We also emphasize
seizures of fentanyl and related compounds because the drug
disproportionately influences opioid-related deaths and international
mail is a major distribution channel for producers in China and
elsewhere.\89\
---------------------------------------------------------------------------
\88\ Other potential benefits include: Reduced supply of illicit
drugs and adverse drug-related outcomes; improved competitiveness
for U.S. businesses facing counterfeit items from foreign markets;
and reduced risks to the U.S. agricultural sector in the form of
invasive pests, plants, and contagious diseases.
\89\ U.S. Government Accountability Office, Illicit Opioids:
While Greater Attention Given to Combating Synthetic Opioids,
Agencies Need to Better Assess their Efforts. GAO-18-205 (2018, p.
9-10) (``GAO, Illicit Opioids'').
---------------------------------------------------------------------------
For context, from 2017 to 2018, CBP officers at IMFs seized 616
mail containing fentanyl, totaling 119 kilograms of the drug, or 59.5
kilograms per year. This volume of fentanyl seizures is significant,
particularly considering its high purity (i.e., exceeding 90 percent by
weight, CEA 2019). The influence of these seizures can be gauged by
comparing the dosage to heroin consumption in the United States.
Assuming a moderately high purity of 75 percent for seized fentanyl at
IMFs and that 0.25 to 1 milligram of fentanyl is equivalent to a single
dose of heroin, this represents roughly 45 to 179 million replacement
doses seized annually. Put another way, the fentanyl seized at IMFs
annually is equivalent to approximately 4 percent of the total heroin
consumption annually, assuming 40 metric tons of heroin consumption and
a 40:1 potency ratio of fentanyl relative to heroin.90 91
---------------------------------------------------------------------------
\90\ RAND (2014, p. 5) previously estimated annual U.S. heroin
consumption totaled roughly 25 metric tons from 2000 to 2010, with
growth later in the time period. Personal communication with Dr.
Jonathan Caulkins on May 20, 2019 indicates that 40 metric tons may
be an appropriate assumption for current heroin consumption.
\91\ 4 percent = [59.5 kilograms of fentanyl * 0.75 purity
adjustment * 40 units of heroin per unit fentanyl * 0.001 metric
tons per kilogram]/40 metric tons of heroin consumed annually.
---------------------------------------------------------------------------
Replacement doses may also be transformed into another metric,
person-years of use, using basic assumptions on doses per year.
Assuming 1,000 doses per person-year of use, the seized fentanyl
represents roughly 45,000 to 179,000 person-years of use. The death
rate per person-year of use is likely between one and four percent,
meaning this annual volume of seizures may represent 450 to 7,160
overdose deaths in total.92 93
---------------------------------------------------------------------------
\92\ Personal communication with Dr. Jonathan Caulkins, Carnegie
Mellon University, May 20, 2019.
\93\ 450 = 45,000 person-years * 0.01 deaths per person-year of
use. 7,160 = 179,000 person-years * 0.04 deaths per person-year of
use.
---------------------------------------------------------------------------
Notably, current seizures are not fully attributable to the pilot
program. While AED may aid in the detection and seizure of fentanyl,
the total seizure amount is likely also due to other forms of
targeting, including screening mail from countries of interest.
Nonetheless, the staggering volume of fentanyl seizures suggests that
even small improvements in CBP's targeting capabilities resulting from
the use of AED will likely result in benefits exceeding the cost of
obtaining and using AED in the targeting process. We also note that
efforts to reduce the risk of opioid addiction, consistent with
Executive Order 13563, help promote ``values that are difficult or
impossible to quantify, including equity, human dignity, fairness, and
distributive impacts.'' This is so especially in view of the fact that
the relevant risks, including that or premature death, are often
inflicted on particularly vulnerable members of society.
The interim final rule will only generate benefits if AED improves
CBP's ability to target mail containing illicit goods. Data from the
JFK pilot provides clear evidence that AED improves CBP's ability to
target mail containing illicit goods. AED targeting increased the
seizure rate per inspection from 9.29 percent under conventional
targeting to 16.26 percent. CBP believes that this will result in a
higher seizure rate of fentanyl and other dangerous goods, but CBP
databases do not separately track AED seizures for fentanyl
specifically compared to conventional targeting. While data doesn't
exist to show that fentanyl seizures would have also increased due to
AED, there is no reason to believe that fentanyl seizures would be
different from overall seizures in this regard. During the regulatory
period, the improvements in targeting will be applied to a much larger
portion of mail than in the pilot period because AED will be the
standard requirement for all countries. CBP has seen bad actors use
transshipment as a means of circumventing the enhanced enforcement that
results from advance reporting of data. Requiring all countries to
submit AED will close this security gap and increase the seizures from
all countries. The exact effect of these seizures on the growing opioid
epidemic is less clear. Literature on the effectiveness of supply-side
drug policy is both limited and discouraging. For the fentanyl market,
empirical studies on drug interdiction have not yet been published.
However, available qualitative literature in related markets provides a
more optimistic perspective on the anticipated outcomes stemming from
the interim final rule because of fentanyl's lethality and its ongoing
emergence as an illicit market. As discussed in more detail in section
5.1 of the full regulatory impact analysis available in the docket of
this rulemaking, because fentanyl's emergence in illicit markets is
relatively new, there is reason to believe that increased interdiction
would reduce overall illicit use of fentanyl.
Nonetheless, data limitations hinder our ability to quantify the
effectiveness, and thus the benefits, of the interim final rule. Most
notably, we are unable to quantify the effect of fentanyl seizures on
total use of the drug. Our assessment of benefits is therefore
[[Page 14275]]
limited to this qualitative discussion. Quantification of the benefits
of the interim final rule is unusually challenging. While the pilot
programs suggest that the rule may result in additional package
seizures, it is not possible to extrapolate from any estimated increase
in seized packages a number to represent likely benefits, including
mortality reductions, from the interim final rule. This is particularly
true because of uncertainty about the effectiveness of supply-side drug
policies.
Important intended effects of the interim final rule are reduced
mortalities from overdoses; other important intended effects include
reductions in morbidity resulting from opioid addiction. It is possible
to imagine a range of plausible scenarios, in which the interim final
rule has different impacts on health and economic end-states. Further,
while the rule is focused on the prevention of opioid deaths as its
intended goal, additional information for targeted cargo screening
obtained through AED could also be used to screen for CBP's other
targets such as counterfeit and dangerous goods, fraudulent goods, or
illicit biological matter, or even in counterterrorism. As it related
to opioids, DHS is able to describe possible scenarios rather than
estimates of net benefits. Each of those scenarios involves a degree of
speculation, making it hazardous to make even qualitative judgments
about which is most likely to occur.
As its standard practice, DHS values a statistical life at $9.6
million.\94\ The quantified costs of the rule from the post-statute
period are about $31 million annualized, but the unquantified costs of
the rule may be substantial. Under one scenario, the interim final rule
could have a moderate effect, preventing ten premature deaths annually;
under a more conservative scenario, the interim final rule could have a
more modest effect, perhaps preventing five premature deaths annually.
Under the moderate scenario if the rule prevented 10 premature deaths
by screening for and successfully seizing opioids as they enter the
country, and if the unquantified costs were roughly equal to the
quantified costs, the rule could provide benefits well in excess of
costs. Under the more modest scenario if the rule prevented five
premature deaths and if the unquantified costs were roughly equal to
half the quantified costs, the rule would also have benefits in excess
of costs. Accepting the high degree of uncertainty, taking account of
the magnitude of the underlying problem, and recognizing that the rule
is likely to have additional benefits from assisting CBP's targeting to
prevent smuggling of other items, DHS believes, in the terms of
Executive Order 13563, ``that its benefits justify its costs
(recognizing that some benefits and costs are difficult to quantify).''
---------------------------------------------------------------------------
\94\ https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20a%20Statistical%20Life%20Guidance.pdf.
---------------------------------------------------------------------------
6. Regulatory Alternatives
CBP is considering three alternative time frames by which CBP must
electronically receive AED from USPS: The preferred alternative that is
the subject of the extensive quantitative analysis presented in this
RIA, as well as two additional alternatives that are more and less
stringent. Below we describe each alternative:
Alternative 1 (the preferred alternative): CBP must receive AED
from USPS as soon as practicable, but no later than prior to loading
the inbound international mail shipment onto the transporting
conveyance destined for the United States. CBP must electronically
receive from the USPS updates to the AED, if any of the submitted data
changes or more accurate data becomes available after the USPS
transmits the AED. USPS must provide these updates as soon as it
becomes aware that any of the submitted data changes or as soon as it
becomes aware that more accurate data is available. USPS must submit
updated information up until the timeframes set forth for updating AED
in 19 CFR 122.48b(b)(2) (which matches the requirement to update AED
currently required for commercial cargo shipments). USPS may submit
updates up until the mail shipment arrives at the first CBP port in the
United States.
Alternative 2: Same as Alternative 1; however, instead of requiring
USPS to update AED if any of the submitted data elements changes or
more details are provided, CBP would require USPS to provide updated
AED for all mail shipments regardless of a change to confirm PREDES
data prior to departure of the transport from the origin post.
Alternative 3: Same as Alternative 1; however, instead of requiring
USPS to transmit AED prior to loading, CBP would require USPS to
transmit AED information prior to arrival.
By evaluating these three alternatives, CBP is seeking the most
favorable balance between benefits (i.e., security outcomes) and costs.
In summary:
CBP believes that Alternative 1 provides the most
favorable combination of cost and stringency as it allows for
flexibility while meeting the necessary security requirements.
Alternative 2 is the most stringent alternative, and its
costs are likely to be greater than the costs estimated for Alternative
1. At the same time, this alternative would likely result in increased
benefits due to better targeting (i.e., more time to conduct risk
assessments based on information provided in the updated AED as well as
providing greater certainty in the accuracy of the information).
However, CBP anticipates that the increased benefits are marginal and
do not justify the additional costs.
Alternative 3 is the least stringent alternative, and its
costs are likely lower than the costs we estimate for Alternative 1.
However, these cost savings come at the expense of providing the time
required for CBP to properly perform risk assessments, potentially
resulting in many packages with AED going unanalyzed. Though this
alternative would give the foreign posts and USPS more time to transmit
the information to CBP and could lead to fewer corrections, most
filings can be submitted by the Alternative 1 time frame without a
problem, and Alternative 3 may not provide adequate security.
7. Net Impact of Rule
Exhibit 13 provides a cost accounting statement for the interim
final rule (post-statute period, 2019 through 2028). Exhibit 14
provides a cost accounting statement for the overall time frame of this
analysis (pre-statute and post-statute periods, 2013 through 2028).
Exhibit 13--Accounting Statement: Post-Statute Domestic Costs
------------------------------------------------------------------------
3 Percent discount 7 Percent discount
rate rate
------------------------------------------------------------------------
U.S. Costs (2019 USD):
Annualized monetized costs.. $11 million....... $11 million.
[[Page 14276]]
Annualized quantified, but None quantified... None quantified.
non-monetized costs.
---------------------------------------
Qualitative (non-quantified) Costs to CBP and USPS to develop MOU
costs. and SOPs with each other and to train
staff; and costs for USPS to
negotiate AED sharing agreements with
foreign posts.
---------------------------------------
U.S. Benefits:
Annualized monetized None monetized.... None monetized.
benefits.
Annualized quantified, but None quantified... None quantified.
non-monetized benefits.
---------------------------------------
Qualitative (non-quantified) The principal benefit of the new rule
benefits. will be more precise identification
of mail shipments with illicit goods
at an earlier time, improving CBP's
effectiveness in preventing
prohibited mail items from entering
the commerce of the United States. In
the pilot program, AED targeting
increased the seizure rate per
inspection from 9.29 percent under
conventional targeting to 16.26
percent. The anticipated benefits of
this rule are wide-ranging given the
breadth of prohibited items but may
include reduced supply of illicit
drugs and adverse-drug related
outcomes; improved competitiveness
for U.S. businesses facing
counterfeit items from foreign
markets; and reduced risks to the
U.S. agricultural sector in the form
of invasive pests, plants, and
contagious diseases.
------------------------------------------------------------------------
Exhibit 14--Accounting Statement: Overall Cost of Rule
[Pre- and post-statute costs]
------------------------------------------------------------------------
3 Percent discount 7 Percent discount
rate rate
------------------------------------------------------------------------
U.S. Costs (2019 USD):
Annualized monetized costs.. $8.3 million...... $7.7 million.
Annualized quantified, but None quantified... None quantified.
non-monetized costs.
---------------------------------------
Qualitative (non-quantified) Costs to CBP and USPS to develop MOU
costs. and SOPs with each other and to train
staff; and costs for USPS to
negotiate AED sharing agreements with
foreign posts.
---------------------------------------
U.S. Benefits:
Annualized monetized None monetized.... None monetized.
benefits.
Annualized quantified, but None quantified... None quantified.
non-monetized benefits.
---------------------------------------
Qualitative (non-quantified) The principal benefit of the new rule
benefits. will be more precise identification
of mail shipments with illicit goods
at an earlier time, improving CBP's
effectiveness in preventing
prohibited mail items from entering
the commerce of the United States. In
the pilot program, AED targeting
increased the seizure rate per
inspection from 9.29 percent under
conventional targeting to 16.26
percent. The anticipated benefits of
this rule are wide-ranging given the
breadth of prohibited items but may
include reduced supply of illicit
drugs and adverse-drug related
outcomes; improved competitiveness
for U.S. businesses facing
counterfeit items from foreign
markets; and reduced risks to the
U.S. agricultural sector in the form
of invasive pests, plants, and
contagious diseases.
------------------------------------------------------------------------
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to examine the impact a rule would have on small
entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people). Because this rule is being
issued as an interim final rule under the good cause exception (5
U.S.C. 553(b)(B)), as set forth above, a regulatory flexibility
analysis is not required under the Regulatory Flexibility Act (5 U.S.C.
601-612).
D. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
E. Privacy
CBP will ensure that all Privacy Act requirements and policies are
adhered to in the implementation of this rule, and will issue or update
any necessary Privacy Impact Assessment and/or Privacy Act System of
Records notice to fully outline processes that will ensure compliance
with Privacy Act protections.
F. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that CBP consider the impact of paperwork and other information
collection burdens
[[Page 14277]]
imposed on the public. There is no new information collection request
burden placed on the public associated with this rule as the burden is
imposed on a partner government agency. As such, the provisions of the
Act do not apply to this rule.
G. Other Regulatory Requirements
For purposes of Congressional Review Act (CRA), the Office of
Management and Budget (OMB) makes a determination as to whether a final
rule constitutes a ``major'' rule. 5 U.S.C. 801-808. If a rule is
deemed a ``major rule'' by the OMB, the CRA generally provides that the
rule may not take effect until at least 60 days following its
publication. 5 U.S.C. 801(a)(3). However, the CRA provides that if
agency finds good cause that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest, the
rule shall take effect at such time as the agency determines. 5 U.S.C.
808(2).
The CRA defines a ``major rule'' as any rule that the Administrator
of the Office of Information and Regulatory Affairs of the OMB finds
has resulted in or is likely to result in--(A) an annual effect on the
economy of $100,000,000 or more; (B) a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies or geographic regions, or (C) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign based enterprises in domestic and export markets.
5 U.S.C. 804(2). The Office of Information and Regulatory Affairs has
determined that this rule does constitute a major rule under 5 U.S.C.
804. However, DHS is proceeding with good cause and this rule will not
be subject to the typical 60 day delayed effective date. See 5 U.S.C.
808(2). As discussed in more detail in section V.A Administrative
Procedure Act, the COVID-19 pandemic has accelerated drug overdose
deaths, resulting in over 81,000 drug overdose deaths in the 12-month
period ending in May 2020. CDC notes that ``synthetic opioids
(primarily illicitly manufactured fentanyl) appear to be the driver,''
increasing 38.4 percent relative to the prior year. Ten western states
reported a more than 98 percent increase in synthetic opioid-involved
deaths over the same period.\95\ CBP believes this rule will address a
regulatory gap related the importation of illicit opioids and that
delaying the implementation of this rule could result in serious harm
to public health and safety by continuing to allow the illicit flow of
opioids into the country while the procedural periods elapse.
---------------------------------------------------------------------------
\95\ Centers for Disease Control, Press Release, Overdose Deaths
Accelerated During COVID-19: Expanded Prevention Efforts Needed,
December 17, 2020, available at https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html (last accessed February 20,
2021).
---------------------------------------------------------------------------
H. Required Report to Congress
Pursuant to section 343(a)(3)(L) of the Trade Act of 2002 (19
U.S.C. 1415 (a)(3)(L)), DHS must submit a report regarding this interim
final rule document to the Committees on Finance and Commerce, Science,
and Transportation of the Senate and the Committees on Ways and Means
and Transportation and Infrastructure of the House of Representatives
not later than 15 days prior to publication in the Federal Register.
DHS has timely submitted the required report.
VI. Signing Authority
The signing authority for this document falls under 19 CFR 0.2(a).
Accordingly, this document is signed by the Secretary of Homeland
Security.
List of Subjects
19 CFR Part 4
Exports, Freight, Harbors, Maritime carriers, Oil pollution,
Reporting and recordkeeping requirements, Vessels.
19 CFR Part 122
Administrative practice and procedure, Air carriers, Aircraft,
Airports, Alcohol and alcoholic beverages, Cigars and cigarettes, Cuba,
Drug traffic control, Freight, Penalties, Reporting and recordkeeping
requirements, Security measures.
19 CFR Part 123
Canada, Freight, International boundaries, Mexico, Motor carriers,
Railroads, Reporting and recordkeeping requirements, Vessels.
19 CFR Part 145
Exports, Lotteries, Postal Service, Reporting and recordkeeping
requirements.
19 CFR Part 149
Foreign trade, Foreign trade zones, Freight, Imports, Reporting and
recordkeeping requirements, Vessels.
Regulatory Amendments
For the reasons set forth above, CBP amends parts 4, 122, 123, 145,
and 149 of title 19 of the Code of Federal Regulations (19 CFR parts 4,
122, 123, 145, and 149) as follows:
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
0
1. The general authority citation for part 4 is revised to read and the
specific authority citation for Sec. 4.7 continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1415, 1431, 1433, 1434,
1624, 2071 note; 46 U.S.C. 501, 60105.
* * * * *
Section 4.7 also issued under 19 U.S.C. 1581(a);
* * * * *
0
2. In Sec. 4.7, add paragraph (f) to read as follows:
Sec. 4.7 Inward foreign manifest; production on demand; contents and
form; advance filing of cargo declaration.
* * * * *
(f) Inbound international mail shipments. This section does not
apply to the United States Postal Service's transmission of advance
electronic information for inbound international mail shipments by
vessel, see Sec. 145.74 of this chapter.
PART 122--AIR COMMERCE REGULATIONS
0
3. The general authority citation for part 122 is revised to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1415, 1431, 1433,
1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
* * * * *
0
4. In Sec. 122.0, revise paragraph (a) to read as follows:
Sec. 122.0 Scope.
(a) Applicability. (1) The regulations in this part relate to the
entry and clearance of aircraft and the transportation of persons and
cargo by aircraft, and are applicable to all air commerce.
(2) The regulations in this part do not apply to the United States
Postal Service's transmission of advance electronic information for
inbound international mail shipments by air, see Sec. 145.74 of this
chapter.
* * * * *
PART 123--CBP RELATIONS WITH CANADA AND MEXICO
0
5. The general authority citation for part 123 is revised to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized
Tariff Schedule of the United States (HTSUS)), 1415, 1431, 1433,
1436, 1448, 1624, 2071 note.
* * * * *
0
6. Revise Sec. 123.0 to read as follows:
[[Page 14278]]
Sec. 123.0 Scope.
This part contains special regulations pertaining to Customs
procedures at the Canadian and Mexican borders. Included are provisions
governing report of arrival, manifesting, unlading and lading,
instruments of international traffic, shipments in transit through
Canada or Mexico or through the United States, commercial traveler's
samples transiting the United States or Canada, baggage arriving from
Canada or Mexico including baggage transiting the United States or
Canada or Mexico, and electronic information for rail and truck cargo
in advance of arrival. Aircraft arriving from or departing for Canada
or Mexico are governed by the provisions of part 122 of this chapter.
The arrival of all vessels from, and clearance of all vessels departing
for, Canada or Mexico are governed by the provisions of part 4 of this
chapter. Fees for services provided in connection with the arrival of
aircraft, vessels, vehicles and other conveyances from Canada or Mexico
are set forth in Sec. 24.22 of this chapter. Regulations pertaining to
the treatment of goods from Canada or Mexico under the North American
Free Trade Agreement are contained in part 181 of this chapter. The
requirements for the United States Postal Service to transmit advance
electronic information for inbound international mail shipments are set
forth in Sec. 145.74 of this chapter.
PART 145--MAIL IMPORTATIONS
0
7. The authority citation for part 145 is amended by adding an entry
for subpart G at the end to read in part as follows:
Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized
Tariff Schedule of the United States, 1624.
* * * * *
Subpart G also issued under 19 U.S.C. 1415, 1436.
0
8. Revise Sec. 145.0 to read as follows:
Sec. 145.0 Scope.
(a) The provisions of this part apply only to mail subject to
Customs examination as set forth in Sec. 145.2. This part contains
regulations pertaining specifically to the importation of merchandise
through the mail but does not contain all the regulations applicable to
mail importations. Importations by mail are subject to the same
requirements and restrictions as importations by any other means,
except where more specific procedures for mail importations are set
forth in this part. The fee applicable to each item of dutiable mail
(other than Inbound Express Mail Service (EMS) items) for which Customs
prepares documentation, and the fee applicable to all EMS items, is set
forth in Sec. 24.22 of this chapter.
(b) This part also contains regulations requiring the United States
Postal Service (USPS) to transmit certain advance electronic data (AED)
to U.S. Customs and Border Protection (CBP) for certain inbound
international mail shipments as set forth in subpart G of this part.
0
9. Add subpart G to read as follows:
Subpart G--Mandatory Advance Electronic Data for Mail Shipments
Sec.
145.73 Definitions.
145.74 Mandatory advance electronic data (AED).
145.75 Liability for civil penalties.
Sec. 145.73 Definitions.
For purposes of this subpart:
Designated operator means an entity officially designated by a
member country of the UPU to operate postal services and fulfill its
treaty obligations to the UPU. USPS is thus considered a designated
operator for the United States.
Express Mail Service or EMS means the optional supplementary postal
express service for documents and merchandise.
International Mail Facility or IMF means an official international
mail processing center operated by CBP.
Item ID means the unique item identifier, in both human-readable
and barcode format.
Letter class mail--documents means letter class (in UPU terms,
letter post) mail containing only documents. Documents consist of any
piece of written, drawn, printed or digital information, excluding
objects of merchandise and may include M-Bags to the extent that such
items do not contain goods.
Letter class mail--goods means letter class (in UPU terms, letter
post) mail up to 2 kilograms containing goods, also referred to as
``small packets''. Mail over 2 kilograms containing goods must use a
postal service other than letter class.
Parcel post means any mail article mailed at the parcel rate or
equivalent class or category of postage.
Universal Postal Union or UPU means the specialized agency of the
United Nations that sets the rules for international postal service for
member countries.
Sec. 145.74 Mandatory advance electronic data (AED).
(a) General requirements. Pursuant to section 343(a)(3)(K) of the
Trade Act of 2002 (Pub. L. 107-210, 19 U.S.C. 1415), as amended, for
certain inbound international mail shipments identified in paragraph
(b) of this section, CBP must electronically receive from USPS within
the time frames specified in paragraph (c)(1) of this section certain
mandatory advance electronic data (AED) and updates thereto as set
forth in paragraph (c)(2) of this section.
(b) Inbound international mail shipments where--(1) AED is
required. Except as provided in paragraphs (b)(2) and (e) of this
section, CBP must electronically receive AED from USPS for inbound
international mail shipments containing goods classified as Express
Mail Service (EMS), Parcel post, or Letter class mail--goods.
(2) AED is not required. AED is not required for:
(i) Letter class mail--documents;
(ii) Items for the blind consisting of correspondence, literature
in whatever format including sound recordings, and equipment or
materials of any kind made or adapted to assist blind persons in
overcoming the problems of blindness (up to 7 kilograms);
(iii) Items sent as Parcel post or EMS that do not contain goods;
(iii) Returned U.S. origin items;
(iv) Items transiting the U.S. in closed transit; and
(v) Items sent as U.S. domestic mail, or mail treated as domestic,
including mail to or from APO, FPO, and DPO addresses, mail to or from
U.S. territories and possessions, and mail to, from or between the
Freely Associated States of the Federated States of Micronesia, the
Republic of the Marshall Islands, and the Republic of Palau.
(c) Time frames for providing and updating AED--(1) Providing AED.
CBP must electronically receive from USPS the AED identified in
paragraph (d) of this section as soon as practicable, but no later than
prior to loading the inbound international mail shipment onto the
transporting conveyance.
(2) Updating AED. CBP must electronically receive from USPS updates
to the AED if any of the submitted data changes or more accurate data
becomes available after USPS transmits the AED. USPS must provide these
updates as soon as it becomes aware that any of the submitted data
changes or as soon as it becomes aware that more accurate data is
available. USPS must submit updated information up until the time frame
specified in Sec. 122.48b(b)(2) of this chapter and may submit updates
up until the time the mail shipment arrives at the CBP port of arrival
in the United States.
[[Page 14279]]
(d) Required AED. CBP must electronically receive from USPS within
the time frames specified in paragraph (c) of this section the AED set
forth in paragraphs (d)(1) and (2) of this section:
(1) Item attribute information. The AED must include the following
information about the attributes (characteristics) of mail items and
their contents. This information may be provided through the item
attribute or ``ITMATT'' information that USPS receives from the origin
post in an electronic message that is the customs declaration
equivalent to paper forms that satisfy the declaration requirements as
set forth in Sec. 145.11. An ``M'' next to any listed data element
indicates that the data element is mandatory in all cases; an ``O''
next to the listed data element indicates that the data element is not
mandatory, but preferred.
(i) Sender's Name (M);
(ii) Sender's Address (M);
(iii) Sender's Telephone/fax/email (O);
(iv) Recipient's Name (M);
(v) Recipient's Address (M);
(vi) Recipient's Telephone/fax/email (O);
(vii) Detailed description of contents (M);
(viii) Quantity (M);
(ix) Weight (M);
(x) Item ID (M);
(xi) Category of Item (gift, documents, sale of goods, commercial
sample, merchandise, returned goods, other) (O);
(xii) Declared Value (M);
(xiii) Date of Posting (O);
(xiv) Postal Charges/Fees (O);
(xv) 10-digit HS Tariff Number (for commercial items) (O);
(xvi) Country of Origin of Goods (for commercial items) (O);
(xvii) Importer's reference (tax code, VAT number, importer number,
etc.) (O);
(xviii) Importer's telephone/fax/email (O);
(xix) License Number (O);
(xx) Certificate Number (O);
(xxi) Invoice Number (O);
(xxii) Details if the goods are subject to quarantine, sanitary/
phytosanitary inspection, or other restrictions (O); and
(xxiii) Designated operator (M).
(2) Pre-advice of despatch information. In addition to the
information about each mail item in paragraph (d)(1) of this section,
the required AED must also include the following information about the
shipment, referred to as the ``dispatch'' or ``despatch,'' of mail
receptacles of the same mail category and class sent from one post to
another that includes the mail item. This information may be provided
through the pre-advice of despatch or ``PREDES'' information that USPS
receives from the origin post in an electronic message advising USPS
about the shipment being sent.
(i) Dispatch information including origin post, destination post,
and dispatch number;
(ii) Scheduled date and time of departure of the transporting
conveyance;
(iii) Scheduled date and time of arrival in the United States;
(iv) Transportation information including carrier and, as
applicable, flight number, voyage number, trip number, and/or
transportation reference number;
(v) Scheduled International Mail Facility in the United States
(IMF);
(vi) Total weight of the dispatch; and
(vii) The information for receptacles contained within the
dispatch, including receptacle type, receptacle ID, and weight, as well
as item ID for items nested to the receptacles, if applicable.
(e) Exclusions from AED requirements for mail shipments from
specific countries. Pursuant to section 343(a)(3)(K)(vi) of the Trade
Act of 2002 (19 U.S.C. 1415(a)(3)(K)(vi)), CBP, in consultation with
USPS, may determine that a specific country or countries do not have
the capacity to collect and transmit AED, represent a low risk for mail
shipments that violate relevant United States laws and regulations, and
account for low volumes of mail shipments that can be effectively
screened for compliance with relevant United States laws and
regulations through an alternate means. In such case(s), CBP will
inform USPS that mail shipments from that specific country or countries
are excluded from the AED requirements in this section. CBP will re-
evaluate these determinations at a minimum on an annual basis.
(f) Compliance date of this section--full compliance required not
later than December 31, 2020. Except for mail shipments from countries
that are excluded from AED requirements as set forth in paragraph (e)
of this section, USPS must comply with the requirements of this section
for 100 percent of mail shipments described in paragraph (b) of this
section not later than December 31, 2020, as set forth in section
343(a)(3)(K)(vi) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)(K)(vi)).
(g) Shipments for which USPS has not complied with the AED
requirements--(1) Shipments received after December 31, 2020. Pursuant
to section 343(a)(3)(K)(vii) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)(K)(vii)), USPS must, in consultation with CBP, refuse any
shipments received after December 31, 2020, for which the AED required
by this section is not received by CBP, unless remedial action is
warranted in lieu of refusal of shipments. If remedial action is
warranted, CBP and USPS will determine the appropriate remedial action.
Remedial action includes, but is not limited to, destruction, seizure,
controlled delivery or other law enforcement initiatives, or correction
of the failure to provide the AED described in this section with
respect to the shipments.
(2) Certain shipments received during the period beginning on
January 1, 2021, through March 15, 2021. Pursuant to section
343(a)(3)(K)(vii) of the Trade Act of 2002 (19 U.S.C.
1415(a)(3)(K)(vii)) as amended by Sec. 802 Consolidated Appropriations
Act, 2021, Public Law 116-260, notwithstanding paragraph (g)(1) of this
section, during the period beginning on January 1, 2021, through March
15, 2021, the Postmaster General may accept a shipment without
transmission of the information described in paragraph (d) of this
section if the Commissioner determines, or concurs with the
determination of the Postmaster General, that the shipment presents a
low risk of violating any relevant United States statutes or
regulations, including statutes or regulations relating to the
importation of controlled substances such as fentanyl and other
synthetic opioids.
Sec. 145.75 Liability for civil penalties.
(a)(1) Violation of Sec. 145.74(g) after December 31, 2020, will
result in USPS being liable for penalties in accordance with the
provisions of 19 U.S.C. 1436(e)(1).
(2) The amount of the penalty will be $5,000 per violation.
(b) The penalty will be reduced or dismissed based on the factors
specified in 19 U.S.C. 1436(e)(2).
PART 149--IMPORTER SECURITY FILING
0
10. The authority citation for part 149 is revised to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 943; 19 U.S.C. 66, 1415, 1624,
2071 note.
0
11. In Sec. 149.1, amend paragraph (a) by adding two sentences at the
end of the paragraph to read as follows:
Sec. 149.1 Definitions.
(a) * * * For the purposes of this part the United States Postal
Service is not an ISF Importer. Regulations related to the transmittal
of advance electronic information for inbound international
[[Page 14280]]
mail shipments are set forth in Sec. 145.74 of this chapter.
* * * * *
Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2021-04373 Filed 3-12-21; 8:45 am]
BILLING CODE 9111-14-P
