# Automated Commercial Environment (ACE) Electronic Export Manifest for Rail Cargo

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2026-17390

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 26, 2026
- **Citation:** 91 FR 55170

## Text

DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Parts 103, 113, 123, and 192
[Docket No. USCBP-2024-0030; CBP Dec. 26-15]
RIN 1651-AB52
Automated Commercial Environment (ACE) Electronic Export Manifest for Rail Cargo

AGENCY:

U.S. Customs and Border Protection, DHS.

ACTION:

Final rule.

SUMMARY:

U.S. Customs and Border Protection (CBP) is revising its regulations pursuant to the Trade Act of 2002 requiring the transmission of export manifest data electronically in the Automated Commercial Environment (ACE) for cargo transported by rail for any train departing the United States. This rule mandates the electronic transmission of rail export manifest information, identifies the parties eligible to transmit information, and describes the time frames prior to departure in which the information is due. This rule enables CBP to address important cargo security concerns while providing efficiencies to the trade.

DATES:

Effective date:
This rule is effective on October 26, 2026.

Compliance date:
CBP will begin enforcing this rule on October 26, 2027.

FOR FURTHER INFORMATION CONTACT:

David Garcia, Program Manager, Outbound Enforcement and Policy Branch, Office of Field Operations, CBP, via email at
cbpexportmanifest@cbp.dhs.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of Revising the Regulations for Electronic Export Manifest for Rail Cargo

Current regulations are insufficient to adequately capture cargo data for rail shipments leaving the United States. U.S. Customs and Border Protection (CBP) is finalizing this rule to reduce the data gaps existing under current regulations, and to address important cargo security concerns resulting from incomplete data. This rule will apply to all rail cargo exports and provide efficiencies to the trade. CBP does not presently require the pre-departure electronic transmission of data for all exported cargo as it does for imported cargo. This can result in a threat to cargo and broader U.S. national security because CBP has no regulations prescribing any method or means of review for cargo being exported by rail. The electronically transmitted cargo data that is transmitted prior to departing the United States by rail is limited significantly in its scope. Currently, 19 CFR 192.14 requires a U.S. Principal Party in Interest (USPPI), the USPPI's agent, or the authorized filing agent of a Foreign Principal Party in Interest (FPPI) to transmit Electronic Export Information (EEI) to CBP through the Automated Commercial Environment (ACE). While this pre-departure data is helpful, EEI is generally only required by the Bureau of Census regulations on shipments that exceed $2,500, per Schedule B number and is generally not required for shipments to Canada unless certain controlled items are involved or the shipment is being transshipped to another destination. 15 CFR Parts 30 and 758. Because of these limitations, there is a significant lack of electronic manifest data which inhibits the enforcement efforts by CBP for such exports. This rule creates an integrated pre-departure electronic export manifest which includes receiving advance information for risk assessment purposes from the source most likely to have correct information about the cargo. This rule closes the gap which currently exists and requires all information to be manifested which enhances the security of the rail cargo and aligns the security of exported rail cargo with the regulations that are required of rail cargo imported into the United States.

B. Statutory Authority

Pursuant to Section 343(a) of the Trade Act of 2002, as amended (“Trade Act”) (19 U.S.C. 1415), CBP is authorized to promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-authorized electronic data interchange (EDI) system before cargo arrives or departs the United States by any mode of commercial transportation (sea, air, rail, or truck). The required cargo information is reasonably necessary to ensure cargo safety and security pursuant to the laws enforced and administered by CBP. 19 U.S.C. 1415(a)(2)). CBP needs to obtain timely and sufficient data prior to cargo arriving or departing the United States via any mode of commercial transportation to review and conduct risk assessments to identify high-risk shipments and inspect cargo effectively.

C. Summary of the Rule

This rule mandates the transmission of electronic export manifest (EEM) data, in addition to the EEI data required under 15 CFR part 30, for all cargo prior to departing the United States for Canada and Mexico in the rail environment in lieu of paper submissions. The new regulation, to be codified at 19 CFR 123.93, mandates the electronic transmission of rail export manifest information, identifies the parties eligible to transmit such information, describes the time frames prior to departure of the train in which the information is due, requires a bond to secure compliance with the new regulation, and identifies an initial filing that must occur as early as practicable, but no later than 24 hours prior to departure from the U.S. port of export while requiring the remaining data to be transmitted at least two hours prior to such departure. The new regulation designates information as transportation data, cargo data, or empty container data, and lists the data elements to be transmitted while identifying and classifying them as mandatory, conditional, or optional. The data elements identified as mandatory must be transmitted, while elements identified as conditional shall be transmitted if applicable, and optional elements may be transmitted at the discretion of the party making the transmission. These data elements will allow CBP to inspect cargo effectively, ensure compliance with U.S. export control laws and regulations, and identify high-risk shipments for purposes of ensuring cargo safety and security.

In the notice of proposed rulemaking (NPRM), 90 FR 2874, 2917 (Jan. 13, 2025), CBP proposed that the initial filing “must be transmitted as early as practicable, but no later than 24 hours prior to departure of the train from the United States.” Subsequent filings were due “no later than two hours prior to departure of the train from the United States.”
Id.
In this final rule, consistent with the NPRM preamble and to provide greater clarity regarding these deadlines, CBP has revised the regulatory text such that the 24-hour and 2-hour deadlines are keyed to the “departure of the train from the United States port of export,” rather than simply “departure of the train from the United States.”
1

This change is intended to make explicit that

the operative deadline is the train's scheduled departure from the designated U.S. port of export and to avoid any ambiguity regarding inland rail yards or other locations.

1

See, e.g.,
90 FR at 2880 (“The proposed regulation would . . . identify an initial filing that must occur 24 hours prior to departure from the
port of export
while requiring the remaining data to be transmitted at least two hours prior to
such departure.
” (emphases added)).

Also in the NPRM, CBP proposed to add 19 CFR 123.93(c), which identifies the parties that can transmit the cargo and conveyance data. The outbound carrier is responsible for transmitting the export manifest transportation data and empty container data. If no other party elects to transmit the initial filing data and the export manifest cargo data, then the outbound carrier must transmit this data. If another eligible party elects to transmit either the initial filing data or export manifest cargo data, the outbound carrier may also choose to, but is not required to, transmit such data. Other eligible parties include the USPPI and FPPI, or an authorized agent, as those parties are defined in section 30.1 of the Federal Trade Regulations (FTR) of the Department of Commerce, Bureau of the Census (15 CFR 30.1). Other eligible transmitters also include any other party with direct knowledge of the export information, such as a customs broker, Automated Broker Interface (ABI) filer, Non-Vessel Operating Common Carrier (NVOCC) as defined by 19 CFR 4.7(b)(3)(ii), or a freight forwarder as defined in 19 CFR 112.1. If another party does not transmit advance export information, then the party that arranges for and/or delivers the cargo to the outbound carrier must fully disclose and present to the outbound carrier the data elements for the initial filing. Based on the comments received after the publication of the NPRM regarding certain parties such as freight forwarders or NVOCCs, CBP is amending 19 CFR 123.93(c) to reflect that these parties will not be acting as customs brokers but, in this instance, acting as EEM transmitters. Specifically, in section 123.93(a), CBP is adding a provision stating that “[t]he transmission of such EEM data for the purpose of complying with this section does not constitute customs business.”

Section 123.93(d) requires a mandatory initial filing of seven data elements identified below to be transmitted as early as practicable, but no later than 24 hours prior to departure from the United States, by either the carrier, USPPI, or another qualified party or their authorized agent. The results of the Test have shown that some rail carriers would have the export manifest data available days in advance prior to departure and therefore would have all the necessary information to transmit the initial filing data to CBP and all other export manifest data well in advance of the 24-hour prior to departure deadlines.
2

Except for the initial data elements, CBP would require electronic export manifest information in sections 123.93(e), and (f) to be transmitted two hours prior to train departure from the U.S. port of export.

2
The results of the rail EEM test are discussed in further detail under Section VII below.

Based upon comments submitted, CBP is making the following changes in paragraphs (d), (e), and (f) as compared to the NPRM:

• In paragraphs (d)(1)(v) and (vi) (which were paragraphs 123.93(d)(5) and (6) in the NPRM), CBP is removing the identification number from these data elements to remove any potential uncertainty and to provide CBP with the necessary information that is sought.

• In paragraph (d)(2), CBP is revising its approach to exemption statements. This revision introduces a conditional element to be transmitted with the initial filing at the time of the initial filing, or as soon as the information becomes applicable: the Automated Export System (AES) Internal Transaction Number (ITN) or FTR exemption/exclusion code. (As proposed, there was a mandatory data element for “Automated Export System (AES) Exemption Statement, as applicable.”) Making this data element conditional will allow the filer to complete the initial EEM filing even when the ITN or FTR exemption/exclusion code is not yet available.

• In paragraph (d)(1)(vii), and in paragraphs (e), and (f), CBP now includes a new data element, “Employer Identification Number (EIN) or Importer Record Number (IRN) or CBP assigned number,” that will help CBP identify the transmitter's required bond, which will be obligated to secure the filing, and will be a mandatory data element for the initial filing, transportation data filing, and cargo data filing. CBP will determine the obligated bond as follows: if the transmitter has an active international carrier bond, the transmitter's international carrier bond will be obligated to secure the filing; if the transmitter does not have an active international carrier bond but does have an active basic custodial bond, the transmitter's basic custodial bond will be obligated to secure the filing; and if the transmitter has neither an active international carrier bond nor an active basic custodial bond but does have an active basic importation and entry bond, the transmitter's basic importation and entry bond will be obligated to secure the filing.

Section 123.93(g) provides for two types of referrals that may be issued by CBP after a risk assessment of an outbound export manifest data transmission. Should any rail cargo be identified by CBP as requiring review, the cargo will not depart until the required additional information related to the shipment is transmitted or some other appropriate action is taken, as specified by CBP. Once the cargo is cleared for loading, a release message will be generated and transmitted to the filer. Section 123.93(h) provides for additional procedures for when a CBP officer determines during the review that cargo or a rail car may contain a potential threat to the train and its vicinity, so that a Do-Not-Load (DNL) instruction can be issued. A DNL instruction prohibits the rail carrier from transporting that cargo or rail car so that further examination can be conducted. These examinations allow CBP to secure the cargo, conduct risk assessments, and inspect cargo effectively. CBP is changing paragraph (h), as compared to the NPRM, by:

• Making clear that DNL and Hold instructions are issued “to the outbound rail carrier and any other transmitter as soon as applicable”; and

• Providing that “[a]ll outbound rail carriers and transmitters who receive a DNL or Hold instruction must contact CBP at the port of export.”

As an enforcement tool, CBP is also changing the relevant bond provisions in 19 CFR 113.62 (basic importation and entry bond), 19 CFR 113.63 (basic custodial bond), and 19 CFR 113.64 (international carrier bond) to provide CBP with authority to assess liquidated damages when parties do not provide the mandatory EEM data in the manner and in the time frame required. Specifically, CBP is amending 19 CFR 113.62 to add new paragraph (k)(3), and amending 19 CFR 113.63(g) and 19 CFR 113.64(d), to add new parameters for failure to electronically provide outbound information in the manner and time frame required because these provisions currently address electronic transmissions for merchandise or cargo which is inbound. With each of these regulations, CBP may assess liquidated damages if a violation occurs. CBP's primary goal is compliance and CBP seeks to work alongside rail carriers and other parties to ensure that the proper data is provided in a timely manner, for CBP to properly review the data, conduct risk assessment of high-risk shipments, and enforce U.S. export laws and regulations on U.S. rail exports. As compared to the NPRM, CBP is also changing proposed 19 CFR 113.64(d)(1) by removing the references to “§§ 4.7 and 4.7(a) of this chapter” and changing the language to read “applicable regulations” so that CBP can rely on this

regulation to enforce violations in other modes of transportation without further amendment. Similarly, in sections 113.62(k)(3), 113.63(g)(2), and 113.64(d)(1) and (2), CBP is removing the references to “under § 123.93 of this chapter” and changing the language to read “by regulation” so that CBP can rely on those regulations to enforce violations in other modes of transportation without further amendment. This final rule will also require a party transmitting the EEM data to CBP to have an appropriate bond on file with CBP that contains the condition to transmit advance export information in the manner required by regulation. This rule goes into effect 60 days after publication, but CBP will not begin enforcing this rule until one year after publication, which gives a party expecting to need an appropriate bond when CBP begins enforcing this rule 300 days to obtain such a bond, either by terminating and replacing an existing continuous bond or by obtaining a new bond (continuous or single transaction). At one year, a bond that does not contain the condition to transmit advance export information in the manner required by regulation will be deemed insufficient.

For CBP, this requirement to transmit an electronic export manifest will enhance cargo security because it provides improvements in risk assessment capabilities by allowing CBP to use its Automated Targeting System (ATS) to screen all of the data transmitted. Port operations will enjoy considerable efficiencies through the elimination of paper manifests. Storage space currently reserved for manifest documents will be freed. Coordination and information exchange among CBP, the Department of Commerce, and other partner government agencies with export jurisdiction will improve. Carriers, USPPIs, NVOCCs, and other interested parties who transmit information will receive more thorough and rapid examination decisions from CBP and improved communication between CBP and trade members. The trade will benefit through the ease of making information corrections and additions electronically in contrast to the more time-consuming process that is required with paper submissions. These benefits, including improved targeting capabilities, which are necessary for security purposes, outweigh the flexibility of allowing parties to file submissions either by paper or electronically.

CBP has also made a couple of other conforming changes as compared to the NPRM. First, CBP is amending § 192.14(b)(1)(iv) to clarify that, for rail cargo, Electronic Export Information (EEI) included in an initial data transmission of electronic export manifest (EEM) information must be filed in accordance with the provisions of § 123.93. This change aligns the EEI filing requirements for rail exports with the new electronic export manifest procedures. The purpose of the change is to avoid any potential conflict or confusion regarding the applicable filing deadlines.

Second, as compared to the NPRM, CBP is making a clarifying change to § 103.31a(a) to add a reference to § 123.93. Specifically, CBP is listing advance electronic information for outbound rail cargo submitted under the new electronic export manifest requirements as information that is covered by the availability of information provisions in § 103.31a.

D. Costs and Benefits

CBP anticipates that during the time period of analysis, including the Test period and the regulatory period (2016-2030), this final rule will result in costs, cost savings, and benefits to CBP and trade members engaging in exporting merchandise out of the United States in the rail environment.
3

CBP estimates present value total costs to CBP and trade members will range from $10.3 million (discounted 2025 U.S. dollars) using a three percent discount rate to around $7.0 million (discounted 2025 U.S. dollars) using a seven percent discount rate. The annualized total costs are estimated to range from $859,845 using a three percent discount rate to around $764,026 using a seven percent discount rate. CBP identified some other potential costs from this rule and some comments from the public voiced concerns about these costs but did not provide monetized values for costs to trade members. Therefore, CBP was unable to monetize these costs, including time burdens to CBP officers if the final rule results in additional cargo examinations and costs to trade members participating in the rail EEM from adjusting business practices, requiring participants to hold or obtain an appropriate bond, requiring outbound rail carriers to have staff available to respond to CBP questions, and trade members potentially being liable for liquidated damages for any violations. Present value total cost savings to CBP and trade members are expected to range between around $47.7 million (discounted 2025 U.S. dollars) using a three percent discount rate, and $29.6 million (discounted 2025 U.S. dollars) using a seven percent discount rate. Annualized cost savings are estimated to range from $4.0 million using a three percent discount rate and $3.3 million using a seven percent discount rate. CBP expects that there will be additional cost savings to trade members that CBP was unable to monetize such as reduced paper, printing and storage costs related to paper forms, and reducing or eliminating instances where trains need to be deconstructed in order for CBP to examine cargo that typically results in a delay of up to two hours and around $3,000 in freight movement costs. CBP anticipates that benefits from this final rule will include improving CBP's security efforts by using ATS to conduct risk assessments on all rail exports, improving communication between federal agencies with export jurisdiction, and improving efficiencies to participating trade members from transitioning from a paper to an electronic process. However, CBP was unable to monetize the expected benefits from this final rule. Present value total net cost savings from the implementation of this final rule will range from $37.5 million (discounted 2025 U.S. dollars) using a three percent discount rate and $22.7 million (discounted 2025 U.S. dollars) using a seven percent discount rate. Annualized net cost savings from this final rule are expected to range from $3.1 million using a three percent discount rate to $2.5 million using a seven percent discount rate.
4

Table 1 below displays CBP's estimates for annualized costs, cost savings, benefits, and net costs from this final rule using a three and seven percent discount rate over the period of analysis (2016-2030). Additionally, based on CBP's perpetual time horizon calculations, the present value of net cost savings from this final rule will be $128.6 million and the annualized value of net cost savings will be $9.01 million using a seven percent discount.

3
In the Regulatory Impact Analysis for this final rule, CBP also discusses and provides estimates for the costs, cost savings, and benefits compared to the baseline (prior to the introduction of the rail EEM test) during both the rail EEM test pilot period (2016-2025) and for the regulatory period (2026-2030).

4
In the economic analysis for this final rule, CBP used a three and seven percent discount rate for estimated future quantified and monetized costs, cost savings, and benefits based on guidance from OMB Circular A-4.

BILLING CODE 9111-14-P

ER26AU26.004

BILLING CODE 9111-14-C

II. Statutory Authority

Section 343(a) of the Trade Act (19 U.S.C. 1415) authorizes CBP to promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-authorized EDI system before the cargo is brought into or departs the United States by any mode of commercial transportation (sea, air, rail, or truck). The required cargo information is reasonably necessary to enable CBP to ensure cargo safety and security pursuant to the laws enforced and administered by CBP. 19 U.S.C. 1415(a)(2).

CBP consulted with carriers throughout the process of developing the proposed regulation and during the course of the ACE Export Manifest for Rail Cargo Test that has been administered since 2015. 19 U.S.C. 1415(a)(3)(A). As the statute requires, in general, the regulation imposes requirements on the party most likely to have direct knowledge of information to be provided. When requiring information from the party with direct knowledge of that information is not practicable, the regulations 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. Where information is not reasonably verifiable by the party on which a requirement is imposed, the regulations permit that party to transmit information on the basis of what it reasonably believes to be true. 19 U.S.C. 1415(a)(3)(B). The regulation that CBP is promulgating will require the transmission of the export manifest data electronically in ACE for cargo transported by rail, pursuant to section 343(a), of the Trade Act. 19 U.S.C. 1415(a)(3)(E). Under section 343(a)(3)(G) of the Trade Act (19 U.S.C. 1415(a)(3)(G)), CBP is required to promulgate regulations that protect the privacy of business proprietary and any other confidential cargo information provided to CBP. Data electronically presented to CBP in accordance with 19 CFR 123.93 is specifically exempt from disclosure as either trade secrets or privileged or confidential commercial or financial information under 19 CFR 103.31a, unless CBP receives a specific request for such records pursuant to 6 CFR 5.3, and the owner of the information expressly agrees in writing to its release. The regulations avoid imposing requirements that are redundant with one another or that are redundant with requirements in other provisions of law, as seen below. 19 U.S.C. 1415(a)(3)(I).

III. Background

A. Current Regulations

Under the existing regulations, commercial rail carriers are not required to submit a paper or electronic manifest for cargo exported from the United States by rail. CBP does have regulations which support the transmission of EEI required by the Bureau of the Census Foreign Trade Regulations (FTR) or the Bureau of Industry and Security's Export Administration Regulations (EAR). Section 192.14 of title 19 of the Code of Federal Regulations implements the requirements of the Trade Act regarding cargo departing the United States. Under 19 CFR 192.14, the USPPI, or its authorized agent, or the authorized filing agent of the FPPI is required to transmit certain advance information to CBP for export cargo leaving the United States by rail.
5

5
The USPPI is defined in the Bureau of the Census FTR as the person or legal entity in the United States that receives the primary benefit, monetary or otherwise, from the export transaction. Generally, that person or entity is the U.S. seller, manufacturer, or order party, or the foreign entity while in the United States when purchasing or obtaining the goods for export. 15 CFR 30.1.

Under 19 CFR 192.14, the USPPI or its authorized agent must transmit and verify system acceptance of this EEI, generally no later than two hours prior to the arrival of the train at the border.
See
19 CFR 192.14(b)(1)(iv). A commercial rail carrier may not load cargo without first receiving from the USPPI or its authorized agent either the related EEI filing citation, covering all cargo for which the EEI is required, or exemption legends, covering cargo for which EEI need not be filed.
See
19 CFR 192.14(c)(4)(i). While the rail carrier is not required to transmit a rail cargo export manifest to CBP, the outbound rail carrier must annotate the carrier's outward manifest, waybill, or other export documentation with the applicable AES proof of filing, post departure, downtime, exclusion, or exemption citations, conforming to the approved data formats found in the Bureau of the Census FTR.
See
15 CFR part 30.

The current regulations found in 19 CFR 192.14 also require the USPPI, the USPPI's authorized agent, or the authorized filing agent of the FPPI to electronically transmit to CBP through AES certain EEI. This information supports statistical gathering; however, it falls short of addressing important cargo security considerations because almost all shipments with a value less than $2,500.00 per Schedule B number and shipments directed to Canada are exempt from EEI filing requirements, other than, for example, those containing certain items controlled under the EAR or intended for transshipment through Canada, creating a gap in security which this new regulation will resolve by requiring information on all exports for rail cargo. CBP will require the transmission of manifest information, providing CBP the opportunity to more effectively target
all
shipments that are exported by rail, which will increase CBP's ability to discover and interdict contraband such as narcotics, weapons, or ammunition, thereby enhancing the security of the United States. This new regulation will close the security gap by requiring compliance with the regulation in order to export the cargo as parties will have to provide pre-departure electronic manifest information which CBP can screen and inspect for the safety and security of the United States and its neighboring countries. This new regulation also aligns with the current regulation for rail cargo imported into the United States.
See
19 CFR 123.91.

The transmission of EEI is a Bureau of the Census filing regulated by 15 CFR part 30 and, with few exceptions, is only submitted when the value of merchandise is above $2,500.00 per Schedule B commodity classification number.
See, e.g.,
15 CFR 30.1(c) (definition of “shipment”), 30.37(a).

The requirement to transmit EEI also does not apply to rail shipments bound for Canada, unless such shipments contain certain export-controlled items or are destined for transshipment to third countries.
See
15 CFR 30.36. This regulatory gap leaves many shipments outside of CBP security review. The lack of pre-departure information, which includes commodity information submitted by rail carriers into CBP targeting systems, hinders CBP's ability to conduct risk assessments and inspect cargo effectively to ensure cargo safety and security. This new regulation creates an integrated pre-departure electronic export manifest which includes receiving advance information for risk assessment purposes from the source most likely to have correct information about the cargo.

Currently, for exporting purposes, each carrier submits a train consist in a format that the carrier develops and with the data elements that the carrier believes should be reported. The train consist identifies what is on the train, the order of the train, and what the train is consisted of as it prepares to depart the country. These data elements provide export information similar to that required by the provisions of 19

CFR 123.91, which describes electronic information for rail cargo required in advance of arrival, and 19 CFR 123.6, which includes a train sheet for arriving railroad trains.

B. The ACE Export Manifest for Rail Cargo Test

On September 9, 2015, CBP published a general notice in the
Federal Register
(80 FR 54305) announcing the National Customs Automation Program (NCAP) Test for the transmission through ACE of EEM information for rail shipments, the ACE Export Manifest for Rail Cargo Test (“Test”), which was limited to nine rail carriers.

In part, the Test was used in furtherance of International Trade Data System (ITDS) key initiatives, set forth in section 405 of the Security and Accountability for Every Port Act of 2006, Public Law 109-347, 120 Stat. 1884, 1929-1931 (SAFE Port Act), codified at 19 U.S.C. 1411(d), and Executive Order 13659, Streamlining the Export/Import Process for America's Businesses, 79 FR 10655 (Feb. 25, 2014). The purpose of ITDS, as stated in section 411(d)(1)(B) of the SAFE Port Act, is to eliminate redundant information requirements, efficiently regulate the flow of commerce, and effectively enforce laws and regulations relating to international trade, by establishing a single portal system operated by CBP for the collection and distribution of standard electronic import and export data required by all participating federal agencies. ACE was developed by CBP as the “single window” for the trade community to comply with the ITDS requirement established by the SAFE Port Act.
See
19 U.S.C. 1411(d)(1)(B).

The data elements in the original Test have been mandatory unless otherwise indicated below. The Test has required that the five conditional data elements be transmitted to CBP only if the particular information pertains to the shipment or cargo. The data elements are required to be transmitted at the lowest bill level. The data elements in the Test for all shipments, including empty rail cars, consist of:

(1) Mode of Transportation (containerized rail cargo or non-containerized rail cargo)

(2) Port of Departure from the United States

(3) Date of Departure

(4) Manifest Number

(5) Train Number

(6) Rail Car Order

(7) Car Locator Message

(8) Hazmat Indicator (Yes/No)

(9) 6-character Hazmat Code (conditional) (If the hazmat indicator is yes, then UN (for United Nations Number) or NA (North American Number) and the corresponding 4-digit identification number assigned to the hazardous material must be provided.)

(10) Marks and Numbers

(11) SCAC (Standard Carrier Alpha Code) for exporting carrier

(12) Shipper name and address (For empty rail cars, the shipper may be the railroad from whom the rail carrier received the empty rail car to transport.)

(13) Consignee name and address (For empty rail cars, the consignee may be the railroad to whom the rail carrier is transporting the empty rail car.)

(14) Place where the rail carrier takes possession of the cargo shipment or empty rail car

(15) Port of Unlading

(16) Country of Ultimate Destination

(17) Equipment Type Code

(18) Container Number(s) (for containerized shipments) or Rail Car Number(s) (for all other shipments)

(19) Empty Indicator (Yes/No)

If the empty indicator is no, then the following data elements must also be provided, as applicable:

(20) Bill of Lading Numbers (Master and House)

(21) Bill of Lading Type (Master, House, Simple, or Sub)

(22) Number of House Bills of Lading

(23) Notify Party name and address (conditional)

(24) AES Internal Transaction Number or AES Exemption Statement (per shipment)

(25) Cargo Description

(26) Weight of Cargo (may be expressed in either pounds or kilograms)

(27) Quantity of Cargo and Unit of Measure

(28) Seal Number

(29) Split Shipment Indicator (Yes/No)

(30) Portion of split shipment (
e.g.,
1 of 10, 4 of 10, 5 of 10—Final, etc.) (conditional)

(31) In-bond Number (conditional)

(32) Mexican Pedimento Number (only for shipments for export to Mexico) (conditional)

On August 14, 2017, CBP extended the Test and began accepting additional applications for all parties that met the eligibility requirements of the original nine stakeholders composed of rail carriers. (82 FR 37893). CBP consulted with the Commercial Customs Operations Advisory Committee (COAC) to address issues concerning the quality, accessibility, and timeliness of export manifest data received during the Test.

After evaluating the initial phase of the Test and considering COAC's comments, CBP determined that, to better test the functionality and feasibility of transmitting the specified export data two hours prior to loading of the cargo on the train, the filing condition for nine of the data elements should be changed. The modified filing conditions enabled CBP to better determine the appropriate reporting requirements for each data element.

CBP modified the Test to change the following eight mandatory or conditional data elements to optional:

• Mode of Transportation (containerized rail cargo or non-containerized rail cargo) (Data Element #1)

• Place where the carrier took possession (Data Element #14)

• Country of Ultimate Destination (Data Element #16)

• Equipment Type Code (Data Element #17)

• Number of House Bills of Lading (Data Element #22)

• Split Shipment Indicator (Data Element #29)

• Portion of Split Shipment (Data Element #30)

• Mexican Pedimento Number (Data Element #32)

CBP also modified the Test to change Data Element #10, Marks and Numbers, from mandatory to conditional.

The remaining data elements under the extended Test continued to be mandatory, conditional, or optional as provided in the September 9, 2015 notice.

CBP identified in the expansion and modification of the Test that it would reevaluate the filing conditions for each data element to determine the feasibility of requiring that data element to be filed electronically in ACE within a specified timeframe before the cargo is loaded on the train, should CBP decide to conduct rulemaking. Accordingly, this regulation changes the timing of presentation of most electronic export manifest data from two hours prior to loading on the train to two hours prior to departure of the train from the U.S. port of export.

Since its inception, the Test evaluated the practicality of requiring rail carriers to transmit export manifest data in a standardized format by utilizing ACE ITDS initiatives. A key challenge was that CBP had not yet established regulations for the specific data elements needed, and carriers were providing train manifests in their own chosen formats. ACE resulted in the creation of a single automated export processing platform for certain export manifest, commodity, licensing, export control, and export targeting transactions. Transmitting export

manifest data through ACE reduces costs for CBP, partner government agencies, and the trade community, and improves facilitation of export shipments through the supply chain.

Additionally, the Test examined the feasibility of requiring the rail carrier to transmit manifest information electronically in ACE, generally within a specified timeframe before the cargo has been loaded on the train. Test participants were required to transmit export manifest data electronically to ACE at least two hours prior to loading of the cargo or, for empty rail cars, upon assembly of the train. This time frame enabled CBP to link the EEI transmitted by the USPPI with the export manifest information. Much of that success resulted from the fact that a high percentage of information is transmitted well before the deadline of two hours prior to departure. CBP found that nearly 94 percent of data transmissions occurred more than 24 hours prior to conveyance departure.
6

6
Information provided by CBP's Cargo and Conveyance Security, Office of Field Operations, subject matter expert on May 9, and June 21, 2022. CBP conducted a random sample of train conveyances participating in the rail EEM test and found that around 94 percent of data transmissions were submitted 24 hours prior to departure.

The success of the Test allowed CBP to determine that the electronic transmission of manifests provides improvements in capabilities at the departure level. As a result of these improvements, CBP is now codifying this program with the regulations in this document. Upon the effective date of this rule, the ACE Export Manifest for Rail Cargo Test will end.

IV. Purpose and Need of the Rule

On January 13, 2025, CBP published a notice of proposed rulemaking which proposed a new regulatory requirement because there are no regulations in place requiring the submission of an electronic export manifest for cargo transported by rail to assess cargo security. 90 FR 2874. The regulatory changes are the culmination of CBP's efforts with the Test described above in Section III.

This regulation leverages the data elements and train consist requirements in advance of departure to Mexico and Canada in order for CBP to make the best use of the data. The data elements are already included in the current Test, which has been operational since September 9, 2015. 80 FR 54305. This regulation identifies the mandatory, conditional, and optional data elements and who is required to transmit the data. The regulation also adds seven mandatory data elements to be provided and presented as the initial filing as early as practicable, but no later than 24 hours prior to departure of the train and one conditional data element to be presented as soon as it is available.

For CBP, the requirement to transmit an electronic export manifest will enhance cargo security because it improves risk assessment capabilities at the port level. Port operations will enjoy considerable efficiencies through the elimination of paper manifests. Storage space currently reserved for manifest documents will be freed. Coordination and information exchange among CBP, the Department of Commerce, and other partner government agencies with export jurisdiction will improve. Carriers, USPPIs, NVOCCs, and other interested parties who transmit information will receive more thorough and rapid examination decisions from CBP. The trade will benefit through the ease of making information corrections and additions electronically, a process that requires cumbersome manifest discrepancy reporting in a paper world.

CBP uses the ACE Export Manifest data transmission, for instance, to conduct risk assessments to identify high-risk rail cargo, but even for this purpose, “high risk” is not limited to weapons, ammunition, currency or narcotics. High-risk shipments are identified based on the totality of the review which includes the party name, country of destination, cargo description, and/or a combination of data elements. Data supports the conclusion that Test participants have access to the manifest data early in the planning stages of an export rail cargo transaction and are able to comply with these time frames. Where concerns were revealed through comments received after the NPRM was published, CBP adjusted certain factors required to be included within the initial filing. CBP added a conditional data element to the regulation, previously a mandatory element, the AES Exemption statement, and amended it to, AES ITN or FTR exemption/exclusion code based on the comment that filers may not have such information to meet the initial filing requirement at the 24-hour mark. CBP recognized that this was a distinct possibility and therefore amended the regulation in this final rule. As stated, CBP anticipates that these timeframes will provide adequate time to perform proper risk assessments and identification of shipments to be inspected early enough in the supply chain to enhance security while minimizing disruption to the flow of goods. Current regulations do not provide any method to screen or secure rail cargo exports, which this regulation seeks to address. ACE Export Manifest pre-departure data transmission allows CBP to use its ATS to screen all of the data transmitted, which allows CBP to make better examination decisions while also reducing the time required to make such decisions. Although CBP aims to identify shipments for inspection prior to loading, inspections could potentially happen at any time before the train departs the United States.

Any rail cargo identified by CBP as requiring review will be held until the required additional information related to the shipment is transmitted to clarify non-descriptive, inaccurate, or insufficient information, a physical inspection is performed, or some other appropriate action is taken, as specified by CBP. Once the cargo is cleared for loading, a release message will be generated and transmitted to the filer.

V. Discussion of Final Rule

CBP is promulgating a new regulation, 19 CFR 123.93, requiring the transmission of export manifest data electronically in ACE for cargo transported by rail, pursuant to section 343(a) of the Trade Act. The regulation mandates the electronic transmission of rail export manifest information, identifies the parties eligible to transmit information, describes the time frames prior to departure of the train in which the information is due, requires a bond to secure compliance with the new regulation, and identifies an initial filing that must occur as early as practicable, but no later than 24 hours prior to departure from the U.S. port of export while requiring the remaining data to be transmitted at least two hours prior to such departure.

Further, consistent with section 343 of the Trade Act, this new regulation requires parties with the most direct knowledge to provide certain information to CBP. In furtherance of that goal, the regulatory language sets forth differences between transportation data (always required of the carrier and carrier only) and cargo data, which can be provided by the party with direct knowledge of that information.

Consistent with the provisions of 19 U.S.C. 1415(a)(3)(B), when requiring information from the party with direct knowledge of the information is not practicable, the regulation takes 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. Where information is not reasonably verifiable by the party, the regulation permits the party to transmit

information on the basis of what it reasonably believes to be true.

The regulation designates information as transportation data, cargo data, or empty container data, and lists the data elements to be transmitted while identifying them as mandatory, conditional, or optional. The data elements that are identified as mandatory must be transmitted. These elements are necessary for CBP to inspect cargo effectively, ensure compliance with U.S. export control laws and regulations, and identify high-risk shipments for purposes of ensuring cargo safety and security. Data elements that are identified as conditional must be provided if applicable. Data elements identified as optional provide additional information for purposes of clarity and may facilitate the clearance process but are not required to be transmitted.

The regulation provides direction regarding enforcement referrals, DNL messages, and Hold messages. Any rail cargo identified by CBP as requiring review will be held until the required additional information related to the shipment is transmitted to clarify non-descriptive, inaccurate, or insufficient information, a physical inspection is performed, or some other appropriate action is taken, as specified by CBP. If the cargo is cleared for loading, a release message will be generated and transmitted to the filer(s). If a potential high-risk cargo is identified, then a CBP officer will conduct an examination. The rail carriers, and any other filers, will be notified of these holds through the integrated system if a mandatory examination of the cargo and/or freight car is required or if CBP needs to conduct further review of the data transmitted. In addition to holds, if a CBP officer determines during review that cargo or a rail car may contain a potential threat to the train and its vicinity, a DNL instruction will be issued, which prohibits the rail carrier from transporting that cargo or railcar. The rail carrier should not transport any cargo or rail car with a DNL instruction. The advance transmission of EEM data helps CBP review and issue holds before cargo is loaded, or before a train reaches the U.S. port of export, thus facilitating a more efficient export process.

Specifically, CBP is requiring seven data elements, characterized as an initial filing, to be transmitted as early as practicable, but no later than 24 hours prior to train departure. As a result of comments received, CBP amended the initial filing to include an AES ITN or FTR exemption/exclusion code as a conditional element recognizing that such information may not be available to the filer at the 24-hour mark. Because compliance is CBP's goal, CBP changed this data element to be conditional and must be transmitted as soon as it is available. CBP replaced the seventh original data element with EIN or IRN or CBP assigned number which was another suggestion based upon comments received from the NPRM. Recognizing that there is more than one type of bond that may be used to secure legal compliance, it is important that CBP records the party transmitting the information to verify that that party has at least one of the required bonds on file. Therefore, CBP added this requirement as the seventh initial data element as well as a mandatory element within transportation and cargo data. The seven data elements chosen for mandatory transmission at least 24 hours prior to departure are those data elements that provide CBP with the cargo information it needs to perform the appropriate security analysis, including: Bill of Lading Number, Total Quantity, Total Weight, Cargo Description, Shipper's name and address, Consignee name and address, and EIN or IRN or CBP assigned number. The AES ITN or FTR Exemption/Exclusion Statement, which is another security-based data element, is another conditional data element to be supplied if and when it is obtained by the filer.

The rule provides for the transmission of transportation, conveyance, and empty container information two hours prior to departure of the train rather than two hours prior to loading (or on assembly of the train in the case of information pertinent to empty rail cars). This change in transmission timing for all other data elements combined with the initial transmission affords CBP the ability to better assess risk and effectively target and inspect shipments prior to the cargo departing the United States to ensure cargo safety and security.

A. Eligible Parties

Section 123.93(c) identifies the parties that can file the cargo and conveyance data. The outbound carrier is responsible for transmitting export manifest transportation data and empty container data. The outbound carrier must also transmit the initial filing data and the export manifest cargo data if no other eligible party elects to do so. If another eligible party elects to transmit either the initial filing data or export manifest cargo data, the outbound carrier may also choose to, but is not required to, transmit such data. Other eligible parties include the USPPI and FPPI, as defined by the provisions of section 30.1 of the FTR of the Department of Commerce, Bureau of the Census (15 CFR 30.1), or its authorized agent. Other eligible filers also include any other party with direct knowledge of the export information, such as a customs broker, ABI filer, NVOCC as defined by 19 CFR 4.7(b)(3)(ii), or a freight forwarder as defined in 19 CFR 112.1. Based upon comments received, CBP changed proposed 19 CFR 123.93(a) to clarify that filing EEM data does not constitute customs business, as defined in 19 U.S.C. 1641(a)(2). If another party does not transmit advance export information, then the party that arranges for and/or delivers the cargo to the outbound carrier must fully disclose and present to the outbound carrier the data elements for the initial filing. Any party transmitting any of the data described in sections 123.93(d)-(f) must have on file with CBP either a CBP basic importation and entry bond containing the provisions found in 19 CFR 113.62, a basic custodial bond containing the provisions found in 19 CFR 113.63, or an international carrier bond containing the provisions found in 19 CFR 113.64.

B. Initial Data Elements

Different from the Test's time periods for data presentation, 19 CFR 123.93 requires a mandatory initial filing of seven data elements identified below to be transmitted as early as practicable, but no later than 24 hours prior to departure from the U.S. port of export, by either the carrier, USPPI, or other qualified parties or their authorized agents. As reflected in 19 CFR 123.93(b)(1), CBP determined that requiring this initial filing in the time frame prescribed is necessary to allow for complete vetting of cargo and transportation information for security purposes. The high percentage of data available for transmission 24 hours prior to departure supports the feasibility of requiring this initial filing. In further support of this approach, CBP intends to relax validations that relate to transportation data until the carrier links the master bill and house bill to allow for the transmission of advance data. Upon receipt of the initial filing transmission, CBP will validate and notify the filer of the master bill and house bill data, if any data is required, or if the house bill has been placed on hold pending the updating of the bill. Under the new regulation, the carrier will have the ultimate responsibility to load, hold, or not load the cargo. The carrier, USPPIs, and other parties qualified to transmit data (or their authorized agent) will be eligible to transmit the initial data filing as discussed above.

CBP added 19 CFR 123.93(d) which identifies the seven data elements from the Test that are required in the mandatory initial filing. Descriptions of those data elements were revised in the proposed rule to clarify the kind and character of data that is required. The revised data elements have been further amended based upon comments received from the NPRM for the initial filing to identify the party transmitting the information and provide for additional time in the situation where an AES ITN or FTR exemption/exclusion code are not available at the 24-hour mark. Below are the data elements with the Test data elements to which they correspond in brackets:

(1) Bill of lading number, which is necessary to link the transmission to the cargo throughout the entire electronic manifest process;

(2) The numbers and quantities of the cargo laden aboard the train as contained in the carrier's bill of lading, either master or house, as applicable (this means the quantity of the lowest external packaging unit; numbers or quantities of containers and pallets do not constitute acceptable information; for example, a container holding 10 pallets with 200 cartons should be described as 200 cartons) [Test data element of Quantity of Cargo and Unit of Measure];

(3) Total weight of cargo expressed in pounds or kilograms [Test data element of Weight of Cargo (may be expressed in either pounds or kilograms)];

(4) A precise cargo description (or the Harmonized Tariff Schedule (HTSUS) number(s) to the 6-digit level under which the cargo is classified if that information is received from the shipper and weight of the cargo; or for a sealed container, the shipper's declared description and weight of the cargo (generic descriptions, specifically those such as “FAK” (freight of all kinds), “general cargo”, and “STC” (said to contain) are not acceptable)) [Test data element of Cargo Description];

(5) The shipper's complete name and address, or identification number, from the bills of lading (for each house bill in a consolidated shipment) [Test data element of Shipper name and address];

(6) The consignee's complete name and address, or identification number, from the bill(s) of lading. (The consignee is the party to whom the cargo will be delivered in a foreign country. However, in the case of cargo shipped “to order of [a named party],” the “to order” party must be named as the consignee; and if there is any other commercial party listed in the bill of lading for delivery or contact purposes, the carrier must also report this other commercial party's identity and contact information including address in the “Notify party” field.) [Test data element of Consignee name and address];

(7) EIN or IRN or CBP assigned number. [Data element recommended by commenter]; and

Conditional data. The following initial data is conditional and must be transmitted if and as soon as applicable. The AES ITN or FTR exemption/exclusion code. [Test data element of AES Exemption Statement (per shipment)].

Except for these eight data elements described above, CBP requires electronic export manifest information in sections 123.93(e), and (f) to be transmitted two hours prior to train departure from the U.S. port of export. That data comprises all additional data elements required to be described as export manifest transportation data, cargo data, and empty container data.

C. Transportation Data Elements

Section 123.93(e)(1) establishes the obligation on the carrier or its agent to supply transportation data. The transportation data elements carried forward from the Test to the current rule include the following:

(1) Port of Departure from the United States (mandatory);

(2) Date of Departure (mandatory);

(3) Mode of Transportation (containerized rail cargo or non-containerized rail cargo) (optional);

(4) Equipment Type Code (optional);

(5) Place where the rail carrier takes possession of the cargo shipment or empty rail car (optional);

(6) Carrier-assigned conveyance name, equipment number and trip number (mandatory);

(7) 6-character Hazmat Code. (If the Hazmat Code is provided, then UN (for United Nations Number) or NA (North American Number) and the corresponding 4-digit identification number assigned to the hazardous material must be provided.) (conditional);

(8) Marks and Numbers (conditional);

(9) SCAC (Standard Carrier Alpha Code) for the exporting carrier (mandatory);

(10) Container or Equipment Numbers (for containerized shipments) or Rail Car Numbers (for all other shipments) (mandatory);

A transportation data element carried over from the Test to section 123.3(e) with an expanded definition is as follows:

Seal Number (conditional, only required if container was sealed). The seal numbers for all seals affixed to containers and/or rail cars to the extent that CBP's data system can accept this information (for example, if a container has more than two seals, and only two seal numbers can be accepted through the system per container, electronic presentation of two of these seal numbers for the container would be considered as constituting full compliance with this data element).

In 19 CFR 123.93(e), CBP added the transportation data element of “Estimated Time of Departure” (mandatory) to be supplied by the carrier or its agent that was not required in the Test but provides important information to CBP.

Based upon comments received from the NPRM, CBP clarifies that 19 CFR 123.93(e)(1)(ii), date of departure, means the date that the train crosses the international border.

Final 19 CFR 123.93(e)(1)(v), which adds the mandatory transportation data element of “Train Consist,” provides CBP with what is on the train from the engine through the last car and how the cargo is lined up for departure from the United States. The Train Consist is composed of the following data elements that were required in the Test and remain in the regulation:

(1) Manifest Number

(2) Train Number

(3) Rail car order

(4) Empty containers.

D. Cargo Data Elements

Section 123.93(f) establishes the obligation to transmit manifest cargo data by any eligible party or its agent identified in section (c). The cargo data elements carried forward from the Test to the rule in addition to the seven data elements forming the initial data filing include the eighteen data elements listed below. CBP recognizes that some cargo data elements are already requested in the initial data filing; however, those data elements would not need to be transmitted again unless there are updates or changes made. While a comment was received asking about the deadline for updating information, CBP has chosen not to insert a deadline as the most relevant and updated information will always be sought. The final cargo data elements are as follows:

(1) Shipper name and address (for empty rail cars, the shipper may be the railroad from whom the rail carrier received the empty rail car to transport) (mandatory);

(2) Consignee name and address (for empty rail cars, the consignee may be the railroad to whom the rail carrier is transporting the empty rail car) (mandatory);

(3) Port of Lading (mandatory);

(4) Port of Unlading (mandatory);

(5) Bill of Lading Type (Master, House, Simple, or Sub) (mandatory);

(6) Bill of Lading Numbers (Master, House, Simple, or Sub) (mandatory);

(7) AES ITN or In-bond Number (per shipment) (mandatory);

(8) Cargo description (mandatory);

(9) Weight of cargo (may be expressed in either pounds or kilograms) (mandatory);

(10) Quantity of cargo and unit of measure (mandatory);

(11) Employer Identification Number (EIN) or Importer Record Number or CBP assigned number (mandatory)

(12) In-bond type (conditional);

(13) Notify party name and address (conditional);

(14) Secondary notify party name and address (conditional);

(15) Mexican Pedimento Number (only for shipments for export to Mexico) (optional);

(16) Secondary notify party SCAC (optional);

(17) Country of ultimate destination (optional); and

(18) Number of house bills of lading (optional).

E. Examination Referrals

Two types of referrals may be issued by CBP after a risk assessment of an outbound export manifest data transmission, pursuant to 19 CFR 123.93(g). A referral for information will be delivered to the data transmitter, the last party to file the outbound rail manifest data for which referral is sought, if the information provided fails to appropriately describe the cargo or if the information provided is inaccurate or insufficient. The data transmitter must then add or correct the information prior to the departure of the train from the United States. A referral for screening will be issued if the potential risk of the cargo is deemed high enough to warrant enhanced screening. In this instance, the rail carrier is notified of these holds, and the notification lets the rail carrier know that a mandatory examination of the cargo and or freight car is required or if CBP needs to conduct further review of the data transmitted.

F. Do-Not-Load (DNL)/Hold Instructions

CBP is also adding 19 CFR 123.93(h), which provides procedures for when a CBP officer determines during the review that cargo or a rail car may contain a potential threat to the train and its vicinity, so that a DNL instruction can be issued, which prohibits the rail carrier from transporting that cargo or rail car. The rail carrier should not transport any cargo or rail car with a DNL instruction. A Hold instruction will be issued, even after loading, if further examination is required. In order to address such issues, data transmitters must respond and fully cooperate when such an instruction or hold is issued. Based upon comments received in the NPRM, CBP removed the requirement that telephone numbers and email addresses be provided because the system will electronically and automatically transmit to the rail carrier and any other transmitter. CBP has changed section 123.93(h)(1)-(3) to clarify that if there is any other filer, in addition to the rail carrier, all filers will be notified electronically of such an issue. It is incumbent upon all parties who receive a DNL/Hold instruction to contact CBP at the port of export.

G. Other Technical Amendments to Part 123

Because CBP is adding new subpart J, CBP is revising the scope provision of the new regulation (19 CFR 123.0) to reflect that customs procedures at the Canadian and Mexican borders would include electronic information for cargo in advance of departure which is not addressed in the current regulation.

H. Proposed Amendments to CBP Bond Conditions

As an enforcement tool, CBP is also changing the relevant bond provisions in 19 CFR 113.62 (basic importation and entry bond), 19 CFR 113.63 (basic custodial bond), and 19 CFR 113.64 (international carrier bond) to provide CBP with authority to assess liquidated damages when parties do not provide the mandatory EEM data in the manner and in the time frame required. Specifically, CBP amends 19 CFR 113.62 to add new paragraph (k)(3) to address electronically provided outbound information. Section 113.62(k) currently addresses electronic transmissions for merchandise or cargo which is inbound. CBP also amends 19 CFR 113.63(g) to include reference to advance outbound information provided to CBP electronically and in the manner and in the time period required under 19 CFR 123.93. Finally, CBP amends 19 CFR 113.64(d) to include outbound reference to information provided electronically by international carriers in the manner and time period required under 19 CFR 123.93. CBP has amended certain language in section 113.64(d) so that CBP can rely on that section to enforce violations in other modes of transportation without further amendment in the future. CBP is not amending section 113.64(e) because that provision, as already promulgated, provides for enforcement of violations when advance outbound information is not provided to CBP electronically and in the manner and in the time period required under 19 CFR 123.93. With each of these regulations, CBP may assess liquidated damages if a violation occurs. Any party that violates the bond conditions for outbound data transmission as described above in this final rule agrees to pay liquidated damages of $5,000 for each violation and up to a maximum of $100,000 per departure. CBP notes that the $100,000 per departure cap on liquidated damages applies only to international carrier bonds (19 CFR 113.64), and not to basic importation and entry bonds (113.62) or basic custodial bonds (113.63). This distinction reflects longstanding regulatory practice and is based on the different types of obligations secured by each bond. International carrier bonds secure obligations related to the movement of conveyances, such as trains, vessels, or aircraft, and the cap is intended to limit liability for each discrete movement. In contrast, basic importation and entry bonds and basic custodial bonds secure obligations that may involve the full value of imported merchandise or the custody and control of goods, where no per-movement cap is appropriate. Compliance is CBP's goal and CBP aspires to work alongside rail carriers and other parties to ensure that trade members provide the proper data in a timely manner, so that CBP can properly review the data, conduct risk assessment of high-risk shipments, and enforce U.S. export laws and regulations on U.S. rail exports. Consistent with this approach, CBP will begin enforcing this rule on October 26, 2027.

I. Severability

CBP intends for the requirements contained in this rule to be severable from each other and to be given effect to the maximum extent possible, such that if a court holds that any provision is invalid or unenforceable—whether in their entirety or as to a particular entity or circumstance—the other provisions will remain in effect as to any other person or circumstance.
7

The various requirements in this final rule are designed to function sensibly without the others, and CBP intends for them to be severable so that each can operate independently.

7
Courts have uniformly held that the APA, 5 U.S.C. 706(2), authorizes courts to sever and set aside “only the offending parts of the rule.”
Carlson
v.
Postal Regulatory Comm'n,
938 F.3d 337, 351 (D.C. Cir. 2019);
see, e.g., K Mart Corp.
v.
Cartier, Inc.,
486 U.S. 281, 294 (1988).

For example, CBP would intend to be able to implement as much of the rule as possible, even if it could not implement some of the rule (such as a conditional data element) due to a court order. This approach ensures that CBP can make necessary security improvements to the greatest extent possible.

Even if a court order were to render the requirement to transmit a particular data element invalid or unenforceable and EEM transmitters' responses under that data element inform transmitters' responsibilities to transmit other data elements, CBP would intend that EEM transmitters continue to provide the other data elements, using the preamble of this final rule as guidance for the applicability of any conditions to the extent this conditionality interpretation does not violate a court order.

If a stricken provision creates a question of whether or not a conditional data element should be transmitted, CBP intends that EEM transmitters would interpret the stricken provision as satisfied such that transmission of the conditional data element is required.

VI. Discussion of Comments

A. Overview

In response to the NPRM, CBP received eleven comments during the 60-day public comment period. Commenters consisted of individuals, customs brokers and freight forwarders associations, standards and compliance organizations, and trade associations. CBP reviewed the public comments received in response to the rulemaking and has addressed relevant comments in this final rule. CBP's responses are grouped by subject area, with a focus on the most common issues and suggestions raised by commenters. Some commenters expressed support for the rule and strongly support CBP's efforts to move forward with the NPRM because it modernizes and helps automate processes, enabling both trade members and CBP to generate efficiencies in international trade. These comments also offered suggestions for additional clarity and improvement. While some commenters expressed general opposition to the proposed rule citing significant costs, voicing concerns with potential disruptions to trade flows, bonding requirements, lack of clarity on certain details, ability to meet certain data reporting requirements and unnecessary added costs, these commenters also provided some suggestions for improvement. One commenter strongly opposed the NPRM and suggested revisions to reduce the impact on its trade members. Comments submitted regarding any topic other than the proposed rule, (
i.e.,
comments on topics unrelated to, for instance, EEM data, process, and costs and benefits of the EEM) are out of scope for this rule and were not considered.

B. Discussion of Comments

1. Generally Supportive With Suggested Changes/Improvements

Comment:
One commenter provided suggested revisions to the regulation text for section 113.63 and multiple paragraphs within section 123.93(a), (c), (g), and (h) to simplify the language and improve clarity.

Response:
CBP appreciates the comment, but considers the language used to be clear and concise, and therefore CBP is not making the suggested edits.

Comment:
One commenter who was supportive of the rule suggested that CBP should offer financial or technical assistance to small and medium sized rail carriers who are likely to face difficulties in adopting new digital infrastructure.

Response:
CBP appreciates the positive feedback. Additionally, CBP plans to provide compliance resources and technical assistance to all interested parties, including rail carriers, during the transition to providing EEM data to CBP.

Comment:
A few commenters requested that CBP ensure that the rail manifest process aligns with the ocean manifest process, particularly in determining the data element used to connect an NVOCC's submission to the rail or ocean manifest.

Response:
CBP agrees with the comment and states that CBP strives to align the EEM process to the extent feasible for all modes of transportation which are the subject of separate rulemakings.

Comment:
One commenter suggested that CBP align the proposed rule with internationally recognized standards, particularly those related to the use of the commenter's suggested identifiers for tracking and identifying cargo. The commenter cited “GS1 identifiers (
e.g.,
Global Trade Item Numbers [GTINs] and Serial Shipping Container Codes [SSCCs]) for tracking and identifying cargo” (brackets are the commenter's). The commenter wrote that these globally unique identifiers are widely used across the industry and can be leveraged to support enhancing data accuracy, interoperability and efficiency. The commenter added that “GS1 data carriers (
e.g.,
GS1-128 barcodes and RFID tags) and GS1 standards for data sharing (
e.g.,
EDI/XML, EPCIS) can be utilized” and that use of such standards “would ensure harmonization with global trade systems and enhances interoperability, ultimately reducing costs and paperwork while improving operational efficiency for all stakeholders involved in the export process including, but not limited to, rail carriers and exporters.”

Response:
CBP appreciates this comment and CBP's goal is to align with recognized standards, but CBP believes its use of the Automated Commercial Environment (ACE) as the platform for the electronic export manifest and specific data elements, which are internationally recognized, meets the standards being utilized by other trade systems.

Comment:
One commenter supportive of the rule requested that CBP adopt data quality standards that ensure that all required information is provided in an accurate and timely manner, thus reducing the potential for costly delays and non-compliance issues.

Response:
CBP agrees and notes that as shown in the NPRM and this final rule, CBP has adopted standards which provide the best information in an orderly and accurate manner.

Comment:
A number of commenters request that CBP allow sufficient time and a transition period for trade members to prepare for full implementation, specifically for them to adjust business practices and adjust their systems such that they can provide the EEM data to CBP.

Response:
CBP understands the concerns from these comments and in response will make this rule effective 60 days after the date of publication; however, enforcement will not begin for at least one year to allow the trade members a period of transition so they may prepare for full implementation. Additionally, CBP notes that its primary goal is compliance and seeks to work alongside rail carriers and other parties to ensure that the proper data is provided in a timely manner, for CBP to properly review the data, conduct risk assessment of high-risk shipments, and enforce U.S. export laws and regulations on U.S. rail exports.

2. Issues With Eligible Parties

Comment:
A number of commenters expressed concern about the specific list of parties eligible to participate in the rail EEM, specifically commenters stated that the USPPI, FPPI, customs brokers and ABI filers were not likely to be EEM filers. Some of the commenters suggested that CBP should remove references to the FTR except in instances where the EEM filing must connect with the EEI filing. These

commenters reasoned that because reporting requirements under the FTR are different, distinguishing between FTR requirements and EEM requirements is important to avoid confusion about who is responsible for the EEM filing.

Response:
CBP emphasizes that the regulatory language describes who is eligible to file and does not gauge whether the eligible filers will or will not engage in this data transmission activity. Any of these parties could be the party that has direct knowledge of the information, and the regulation will not exclude them from eligibility. CBP has added language to section 123.93(a) to clarify that the act of transmitting EEM is not customs business, but brokers will still be eligible to file EEM. Because USPPIs and FPPIs may be filers, the FTR language will stay in this rule.

Comment:
One commenter, who was generally supportive of the rule, asked for additional clarity on which parties are responsible for filing export manifest cargo data, specifically whether each of the NVOCCs with house bills are required to file EEM data or only the lowest level house bill filer must do so.

Response:
CBP has afforded the export filers choices as to whether to take responsibility over the transmission of data pertaining to a shipment. While the outbound rail carrier is the default transmitter, other parties may step forward and take responsibility for data transmission. CBP only seeks a party with knowledge of the shipment to be the transmitter; any eligible party may transmit the data. In any situation, CBP encourages the party with the most direct knowledge of the cargo to provide accurate and complete cargo data either directly to CBP as an EEM participant or to another party that will act as the EEM participant.

3. Availability of Filing Parties

Comment:
A number of commenters were concerned about the requirement that the EEM “transmitter” must have 24/7 access to the phone number and email address provided on the EEM transmission. They suggest that the rail carrier should be the entity required to monitor a phone and email address 24/7, not the house-level filers. One commenter specifically suggested that the house-level filers need not have the same level of availability to CBP as the rail carriers.

Response:
CBP understands the concern of the commenters and is adjusting the language of the regulatory text in sections 123.93(h)(1) through 123.93(h)(3) as part of this final rule to reflect this concern. All parties who transmit EEM data will be notified, should an instruction of Do-Not Load (DNL) or Hold be issued. CBP will update the regulatory text to include all transmitters and/or outbound rail carriers, as applicable, must respond and fully cooperate when a DNL or Hold instruction is issued. The parties that receive such instructions must contact CBP at the port of export. The party with physical possession of the cargo will be required to carry out the DNL or Hold protocols and the directions provided by law enforcement authorities. It is incumbent on the parties who have received a DNL or Hold instruction to contact CBP at the port of export.

4. Data Changes

Comment:
Several commenters requested further guidance on section 123.93(b)(3). In the NPRM, CBP states that updates are required “upon discovery of data changes,” but it does not specify a timeframe for when such updates must be made. The comments recommend that CBP should provide further guidance on whether there is a cutoff period for updates, particularly in cases where discrepancies are identified long after departure, such as during an audit conducted after delivery, perhaps after a year or more.

Response:
CBP appreciates this comment, but CBP sees value in allowing trade members to update export manifest data at any time in the future, which is consistent with CBP treatment of import manifest data. This approach is similar to Foreign Trade Regulations at 15 CFR part 30 which also seek updates without time constraints. Specifically, under those regulations, “corrections, cancellations, or amendments to . . . information shall be electronically identified and transmitted . . . for all required fields as soon as possible.” 15 CFR 30.9(a).

5. Bond Conditions

Comment:
A few commenters were concerned with proposed section 113.62 (k)(3) which states “If the principal elects to provide advance outbound information to CBP electronically, the principal agrees to provide such information in the manner and in the time period required under section 123.93 of this chapter. If the principal defaults with regard to these obligations, the principal and surety (jointly and severally) agree to pay liquidated damages of $5,000 for each violation.” These commenters recommend that this be removed as the basic importation and entry bond is not applicable to the parties who will be transmitting EEM filings.

Response:
CBP believes that this recommendation is inconsistent with the statutory provisions governing the transmission of advance electronic cargo information. The information can come from a party with direct knowledge of that information, who may be the principal on a basic importation and entry bond. CBP does not limit the transmitter by role but rather by knowledge of the information. To ensure accuracy, CBP permits any party with that knowledge to come forward and transmit the required electronic export manifest information, but to ensure the electronic export manifest regulations are complied with, the transmitter must have a bond on file.

Comment:
One commenter stated that it is not appropriate to include export-related obligations within the bond conditions controlling importation or entry of merchandise. The commenter suggests that a new subsection be created to incorporate bond conditions that ensure compliance by parties that elect to file, or are required to file, export-related information in accordance with CBP regulations. Commenters further argued that imposing export-related obligations within import bond conditions could create practical problems. For example, one commenter explained that export cargo is often unrelated to imported merchandise, so requiring export filers to use bonds designed for imports is “contradictory and out of place.” Some commenters wrote that parties such as shippers, consignees, or freight forwarders may not have, or may not wish to use, import bonds for export filings. They cited the Importer Security Filing (ISF) process, where CBP created a separate bond appendix for parties without standard bonds, and suggested a similar approach for export manifest filings. A commenter wrote that requiring export filers to obligate import bonds could force them to obtain unnecessary bonds or create confusion when multiple bonds are active.

Response:
The statutory framework of section 343 of the Trade Act of 2002, as amended (19 U.S.C. 1415) addresses both import and export making the inclusion of bonds consistent with the statutory text. Under Trade Act of 2002, when CBP requires the provision of advance electronic export cargo information, CBP shall impose the requirement on the party most likely to have direct knowledge of the information. The rail electronic export information requirements described in the rule are consistent with this statutory framework as they seek the information from the party best positioned to have it. The rule

encourages transmission by the party most likely to have direct knowledge of the information, and the current bond structure is sufficient to ensure compliance with it, with the amendments to the bonds made in this rule. When a party holding a Basic Importation and Entry Bond has this information and chooses to provide it, having a consolidated bond that secures the party's compliance with this rule, rather than requiring a new, separate bond, is the best way to ensure the information transmitted is accurate and timely and involves less cost to the transmitter and less administrative burden on all parties.

Furthermore, CBP directs the commenter to 19 CFR 113.64 which has imposed export-related obligations within import bond conditions; this regulation became effective on February 18, 1985 (49 FR 41171). For instance, under 19 CFR 113.64(j), an agreement to deliver export documents provides that “[i]f the principal's vessel, vehicle, or aircraft is granted clearance without filing a complete outward manifest and all required export documents, the principal agrees to file timely the required manifest and all required export documents.” Section 113.64(m)(1) states that the “[p]rincipal agrees that it will not allow seized or detained merchandise, marked with warning labels of the fact of seizure or detention, to be placed on board a vessel, vehicle, or aircraft for exportation or to be otherwise disposed of without written permission from CBP, and that if it fails to prevent such placement or other disposition, it will redeliver the merchandise to CBP within 30 days, upon demand made within 10 days of CBP discovery of the unlawful placement or other disposition.”

Finally, CBP does not want to create a separate bond when the new provisions can be absorbed within the current bond structure. Many parties wanting to transmit information already hold a CBP bond and will not be required to incur the expense of acquiring a separate bond to handle export transactions only.

Comment:
One commenter suggested that if CBP anticipates more than one bond activity code may be used for the rail EEM, it will be important that CBP records the party transmitting the information and specify the bond the filer intends to obligate. The commenter suggests that CBP could add an additional data element for the identification of the filing party and filer's bond being obligated in each of the three categories of data elements: sections 123.93(d) (used for the initial filing), 123.93(e) (used for transportation data), and 123.93(f) (used for cargo data). The commenter further suggests that these three subsections should also include a mandatory data element that identifies the filer's bond being obligated because it is not uncommon for outbound carriers, or non-carrier information filers (
e.g.,
shipper, consignee, freight forwarder, etc.), to have multiple active continuous bonds that would contain export rail manifest-related bond conditions. Lastly, the commenter suggests that, as is done with the Importer Security Filings, the information filer should identify the bond that it chooses to secure its filing obligations.

Response:
CBP appreciates these suggestions and believes adding the transmitter's identifying information as a data element will assist CBP in identifying the transmitter's required bond. As such, CBP will add a new data element for the transmitter's identifying information to sections 123.93(d)(1)(vii) for the initial filing, 123.93(e)(1)(viii) for transportation data, and 123.93(f)(1)(xi) for cargo data. CBP will determine the obligated bond as follows: if the transmitter has an active international carrier bond, the transmitter's international carrier bond will be obligated to secure the filing; if the transmitter does not have an active international carrier bond but does have an active basic custodial bond, the transmitter's basic custodial bond will be obligated to secure the filing; and if the transmitter has neither an active international carrier bond nor an active basic custodial bond but does have an active basic importation and entry bond, the transmitter's basic importation and entry bond will be obligated to secure the filing. CBP considered the commenter's suggestion to allow filers to designate which of their bonds to obligate but has decided to use this standardized hierarchy to promote administrative simplicity and consistent enforcement.

Comment:
One commenter suggested that the expansion of existing bond conditions in certain sections of Part 113 of the CBP regulations should be included to ensure compliance by parties that elect to file or are required to file export information including to ensure clarity and remove doubt.

Response:
CBP appreciates this suggestion and believes that the addition of the reference to “(k)(3)” to section 113.62(n) clarifies the consequences of default and the calculation of liquidated damages for each violation.

Comment:
One commenter suggested that the proposed rule would change carriers' bonding requirements and could result in unfair enforcement against rail carriers because they could conceivably be liable for liquidated damages based on the transmission of data of which the carrier did not have direct knowledge. The commenter wrote that the proposed rule also creates a disincentive for any other data transmitter to actually transmit the data for which they have the most direct knowledge because they are not
required
to submit the data.

Response:
The rule treats bonding for exports for rail carriers in a manner consistent with vessel and air carriers. In all modes, any party with knowledge may step forward and transmit the necessary data as long as that party has at least one of the three bonds that are being amended to secure advance export information. Otherwise, the rail carrier will be responsible for knowing what is on its train and transmitting the data required. The bonding structure for outbound rail transmissions is consistent with all bonding schemes for other modes of transport. Additionally, as required by section 343 of the Trade Act of 2002, as amended (19 U.S.C. 1415), the regulations provide that, CBP will take into consideration how, in accordance with ordinary commercial practices, a rail carrier acquired the information, and whether and how the rail carrier is able to verify the information. The regulations also provide that, where a rail carrier is not reasonably able to verify such information, CBP will permit the rail carrier to electronically transmit the information based on what that party reasonably believes to be true.

6. Issues Regarding Initial Filing

Comment:
A few commenters suggested that for ocean shipments routed via rail (specifically when an NVOCC has an ocean shipment departing the U.S. via rail to a Canadian or Mexican seaport), CBP utilize the Vessel Operating Common Carrier (VOCC) master bill of lading as the linkage point in section 123.93(d) as it would be the least disruptive and most operationally feasible approach. The commenters stated that there is no feasible way for the NVOCC to obtain the waybill number before the initial filing of house-level data.

Response:
CBP appreciates the suggestion in these comments; however, the waybill number exists before the initial filing of house-level data and trade members may need to adjust business practices to obtain that information to transmit in the initial filing in order to comply with this rule. In co-loading scenarios, CBP recognizes

that master-loader NVOCCs may not have visibility into the lowest-level house bill data, and CBP expects that, where practicable, the NVOCC that issued the lowest-level house bill will provide that house-level data either directly to CBP or through another EEM transmitter.

Comment:
A few commenters request additional clarification for section 123.93(d)(4) regarding potential risks of holds, delays, or other issues if the cargo description in the EEM does not exactly match the descriptions in other export documents. The commenters requested clarification on whether such differences between the EEM and EEI filings would hinder CBP's targeting objectives or result in shipment holds, and if so, how such discrepancies should be addressed to ensure smooth processing.

Response:
CBP is interested in the cargo description from a security aspect, not a statistical one. CBP utilizes both EEM and EEI in its risk assessment as CBP considers all available data sets which inform enforcement and facilitation determinations. CBP expects that the additional data will improve and not hinder CBP objectives.

Comment:
A few commenters stated that the requirement in proposed section 123.93(d)(4), as written, indicates that the description provided in EEM for a sealed container should be the “shipper's declared description” and asked CBP to clarify whether the “shipper's declared description” should match the description in the bill of lading. Commenters stated that if the shipper's declared description should match the description in the bill of lading, the description may not provide the desired details.

Response:
CBP notes that the EEM filer (transmitter) is expected to meet the requirements of the regulation, and whether or not the container is sealed is not the controlling factor in providing that data. CBP expects that the party with the most direct knowledge of the house-level bills will provide the EEM data either directly to CBP or to another party which will transmit the EEM data to CBP.

Comment:
A few commenters requested additional clarification for sections 123.93(d)(5) and 123.93(d)(6). Commenters requested clarification on what constitutes an acceptable “identification number” for the shipper and consignee, noting that using an EIN may not correspond to the party listed on the bill of lading and that there is no standard identification number for foreign consignees. The commenters noted that the consignee field in a bill of lading can vary, creating potential uncertainty in reporting.

Response:
CBP appreciates the comment and acknowledges the potential uncertainty. To address this concern, CBP will remove “identification number” from sections 123.93(d)(5) and 123.93(d)(6), and both sections are restructured to sections 123.93(d)(1)(v) and 123.93(d)(1)(vi) in this final rule.

Comment:
A few commenters suggested that CBP adjust language in section 123.93(d)(7) to include ITN or FTR exemption/exclusion codes. These commenters further suggested that CBP should accept initial filing even when the AES, ITN, or FTR exemption/exclusion statement is not yet available. Commenters suggested CBP move this data element to the mandatory cargo data section, allowing an NVOCC to transmit it in the initial filing when available or as part of a supplemental filing at a later time, as long as it remains within the required transmission timeframe. The commenters ask CBP to verify that appropriate processes are in place to ensure rail carriers' manifest filings can accommodate all applicable ITNs and exemption/exclusion statements.

Response:
CBP acknowledges this concern and as a result will amend section 123.93(d) of the initial filing to include both mandatory and conditional elements in this final rule. CBP is revising this provision such that the data element “The Automated Export System (AES) Exemption Statement, as applicable” is amended to conditional and revised to state that “AES, ITN, or FTR exemption/exclusion code must be transmitted if, and as soon as, applicable.”

Comment:
One commenter suggested that there is no need to have the initial data elements transmitted 22 hours prior to the transportation data elements and cargo data elements. Rail carriers may have a rail yard that is only an hour or two from the point of export, or where a train maybe traveling to Canada and may have to pick up cars for export along the way. In this case, the rail carrier will construct the train and transmit the initial filing and then need to hold the train for over 20 hours in the yard or somewhere else less secure between the yard and the point of export. The commenter also remarks that this was not how the Test program worked and suggested that transmission time for all three data elements should be aligned at two hours prior to departure from the country.

Response:
CBP disagrees as the deadlines for data elements are based on hours prior to the train departure from the U.S. port of export, not crossing the border. 19 CFR 123.93(d) requires an initial filing of eight data elements (7 mandatory and 1 conditional) identified to be transmitted as early as practicable, but no later than 24 hours prior to departure from the U.S. port of export, by either the carrier, USPPI, or other qualified parties or their authorized agents. The results of the Test have shown that some rail carriers will have the export manifest data available days in advance prior to departure and therefore will have all the necessary information to transmit the initial filing data to CBP and all other export manifest data well in advance of the 24 hours prior to departure deadlines. As noted, during the duration of the Test, CBP has kept such disruptions to a minimum.

Comment:
One commenter suggested that the rule will create major disruptions for railroads. The commenter argued that:

• Because the rule prohibits carriers from transporting cargo subject to a DNL or Hold instruction, and because CBP will only know whether to issue such an instruction after it has received and reviewed all three sets of data (initial filing at 24 hours, and transportation and cargo data at 2 hours before departure), carriers would in practice need to hold trains until CBP has completed its review and communicated whether any DNL/Hold applies.

• Moreover, according to the commenter, it appears that a referral or DNL/Hold decision will be made by CBP after all data elements are collected from the data transmitters.

• As a result, export trains assembled in a yard could be forced to sit for more than 24 hours while awaiting CBP's review and a de facto “all-clear,” which is inconsistent with how rail yards are designed—
i.e.,
for high throughput and minimal dwell time.

• The commenter further stated that if trains or cars must be held at or near border crossings for inspections triggered by DNL/Hold decisions or referrals, this would require complex switching or live-lift operations at locations that often have single-track constraints and limited infrastructure, causing cascading delays and missed “slots” for both export and other traffic on the line.

• In the commenter's view, these effects would substantially increase dwell time, force carriers to redesign their train-slotting practices, and decrease overall network fluidity.

The commenter stated that the timing of data set transmissions is also problematic as there is no need to have

the initial data elements transmitted 22 hours prior to the transportation data elements and cargo data elements.

Response:
CBP notes that the outbound electronic rail manifest requirements do not obligate carriers to wait for an affirmative “all-clear” message from CBP prior to movement, and do not obligate CBP to wait for all data to be submitted before CBP can issue a DNL or Hold instruction. Under 19 CFR 123.93, carriers must meet the prescribed filing deadlines and must not transport cargo that is subject to a DNL or Hold instruction, but they are not required to hold trains solely to await a separate notification that no such instruction has been issued. Additionally, CBP notes that feedback obtained from the rail EEM Test participants indicates they did not experience disruptions while participating in the Test.

In general, CBP does not anticipate that the final rule will impose the prolonged yard dwell times, widespread slotting conflicts, or systemic network disruptions described by the commenter. When EEM data is provided within the deadlines set forth in this rule, cargo inspections will be conducted at a U.S. port of export location determined by CBP. Therefore, CBP anticipates that cargo inspections occurring between the U.S. port of export and the actual border crossing would be rare instances where a significant imminent threat is identified after the train is given clearance and has departed the United States from the final port of export.

CBP acknowledges that certain ports of export and border crossings have unique yard and infrastructure constraints such that carriers may need to adjust operational procedures as needed to minimize unwarranted disruption.

CBP acknowledges that carriers remain free to build in their own buffers, but notes that such self-imposed dwell is not required by the rule and is too speculative for CBP to quantify.

Regarding the commenter's objection to requiring initial data elements at least 22 hours prior to the transportation and cargo data elements, this comment is contrary to the long-stated trade desire for progressive filings when information is known.

Comment:
One commenter suggested that CBP's assumption that a 24-hour transmission timeframe for the initial data elements was based on a flawed Test program design. The commenter further suggested that CBP expand its Test program to incorporate different points of export to learn from real-world experiences how rail carriers operate at the border and that continuing to expand the Test program could provide for better outcomes in the long run.

Response:
The time frames set out in this rule are a compromise that allows commerce to flow while providing CBP the ability to identify risks and to examine cargo in the export process. CBP opened participation in the Test program to any and all rail carriers as well as other members of the trade as of 2017. The only limitation was that participation from rail carriers and other trade members needed to be voluntary. There were no restrictions with regard to the participant's organization size, location, or commodity type for participation in the test. 82 FR at 37894. CBP does not support the idea of further extending the Test where additional voluntary participation is unlikely to occur.

7. Date of Departure

Comment:
A few commenters requested additional clarification on section 123.93(e) “Date of departure”. They stated that CBP does not specify whether this data element refers to the departure date from the United States. To ensure consistency and clarity, the data should explicitly state that it represents the date the train crosses the international border, leaving the United States.

Response:
CBP agrees that for this rule the term “Date of departure” constitutes the date that the train crosses the international border, exiting the United States.

8. Assistance for Stakeholders

Comment:
A number of commenters urged CBP to release an EEM business process document to allow affected parties to more accurately formulate compliant and effective business processes internally and with their business partners.

Response:
CBP agrees and intends to cooperate and provide support to trade members during the transition process where the trade will be providing EEM data to CBP. CBP agrees that providing an EEM business process document will be beneficial and intends to provide that documentation to trade members.

Comment:
One commenter requested that CBP engage with supply chain stakeholders, including manufacturers, distributors, shippers, exporters, logistics providers, and technology solution developers, throughout the rulemaking process and provide adequate support and education on compliance requirements, especially for smaller players in the supply chain.

Response:
CBP has engaged with stakeholders throughout the rulemaking process and will continue to do so during the implementation phase of this rule.

9. General Opposition to Rule With Suggested Changes/Improvements

Comment:
One commenter who opposed the rule stated that statutory principles should guide the rulemaking and that “the requirement to provide particular information shall be imposed on the party most likely to have direct knowledge of that information . . . [and] [w]here information is not reasonably verifiable by the party on which a requirement is imposed, the regulations shall permit that party to transmit information on the basis of what it reasonably believes to be true.”

The commenter suggested that, to comply with the congressional directive, the only information a rail carrier should be required to provide is the mandatory data subset of the export manifest transportation data. The commenter further suggests that the rule should be revised to only permit enforcement on the rail carrier for misstatements regarding the mandatory data subset of the export manifest transportation data. The commenter objected that the proposal places the onus on the rail carrier to transmit all data elements.

Response:
CBP agrees that statutory principles guide this rulemaking, including the authority to promulgate regulations providing for the mandatory transmission of electronic cargo information, pursuant to section 343(a) of the Trade Act. Furthermore, this rule encourages the parties with the knowledge to supply the data. While all eligible parties are encouraged to transmit data, the ultimate obligation must rest with at least one party. Furthermore, there must be a responsible party to reach should questions about the data arise and/or violations involving false or inadequate transmission of data occur. Without a clear identification of the transmitter of the data whose bond is liable, CBP would never be able to identify the party responsible for any data transmission deficiencies. As with other data transmission rules, this regulation allows any party with the necessary information to transmit it, but if no other party comes forward and elects to transmit the data, the ultimate responsibility must fall on the carrier as the party transporting the shipment out of the United States. If the carrier does not provide the necessary information, the carrier has the ability to remove the cargo as the conveyance will not be authorized to leave the United States.

10. DNL/Holds

Comment:
One commenter stated that the rule would have unintended consequences to the fluidity of the rail network and supply chain, citing the following concerns: if there is a referral made under proposed 19 CFR 123.93(g), then the car, unit, or empty container may not be exported; if a DNL/Hold instruction is made, then the rail carrier may not even transport the car, unit, or empty container at all under proposed 19 CFR 123.93(h); it appears that a referral or DNL/Hold decision will be made by CBP after all data elements are collected from the data transmitters, but CBP will not have all data elements until two hours prior to departure, at which point a rail carrier under normal circumstances would already have the train underway. This commenter suggests that CBP eliminate the DNL/Hold instruction provision of the rule.

Response:
CBP disagrees that it should eliminate the DNL/Hold instruction provision as the regulation does not state that CBP will make decisions only after all elements are collected. In fact, one of the purposes of the rule is to provide trade members with the ability to provide data on a continuous basis as information becomes available, which allows CBP to review the data on a continuous basis as it is transmitted. Additionally, under the rule at 19 CFR 123.93(h), if a CBP officer determines during the review that cargo or a rail car may contain a potential threat to the train and its vicinity, then a DNL instruction may be issued. Any such warning will assist in avoiding a catastrophic event; so, in those instances, any transportation delay and resultant inconvenience will be insignificant when compared to a possible catastrophe averted.

Comment:
One commenter stated that the rule should be modified to allow rail carriers and CBP to designate inspection areas to reduce the need for infrastructure, facilities, manpower, and equipment at the actual border crossing or point of export.

Response:
CBP will be flexible in working cooperatively with carriers to accomplish necessary inspections with as minimal disruption as possible, but inspectional decisions reside solely with the agency. The transmission of EEM data in advance helps CBP review and allows CBP to issue holds before cargo is loaded or before a train reaches the U.S. port of export, thereby limiting the number of issues that CBP must address at the U.S. port of export and reducing potential delays.

11. Timing

Comment:
One commenter was concerned about the timing of CBP referrals if the train is in route to the point of export where such an inspection will occur. The commenter wrote that NPRM seems to contemplate that inspections could just occur at the port of export, which is not that simple for the rail carriers.

Response:
CBP understands this concern and will endeavor to perform all inspections with the least inconvenience to the trade. CBP anticipates that the deadline requirements of this rule for transmitting information allows CBP to conduct most, if not all risk assessments, and identify potential cargo that may be inspected prior to the train departing the port of export. If, however, a CBP officer determines that an inspection needs to occur while in transit to avoid a catastrophic threat, any transportation delay and inconvenience that might be caused will be insignificant when compared to averting a disaster.

12. Resources

Comment:
One commenter stated CBP does not have the necessary resources for a rule of this magnitude and expressed concern at how CBP will inspect at points of export.

Response:
CBP notes that resource management and inspection techniques fall outside the scope of this regulation and do not need to be considered. However, CBP will inspect cargo in a manner that causes the least amount of disruption to the flow of commerce. CBP anticipates that inspections will occur before the train departs the port of export but acknowledges that there could be instances where an inspection needs to occur between the port of export and crossing the border. CBP does not anticipate that this will be a common event, especially when data is provided within the deadlines of this rule.

13. Burden on Carriers

Comment:
One commenter stated that the burden imposed on carriers regarding the application of the EEI proposal to empty containers is not justified by the risk because providing that data will be onerous for rail carriers, especially when most rail equipment including containers are not owned by the rail carrier, but instead by shippers, equipment manufacturers, or lessors. The commenter expressed concern that because such data is not provided by rail carriers to CBP for empty containers, an entire system will need to be developed to do so.

Response:
CBP maintains the right to make security and enforcement decisions on the level of risk involved. Additionally, empty containers are listed in the train consist currently being provided by participants now, and do not require any additional data to be provided in accordance with this rule. As identified above, this rule will be effective 60 days from the date of publication, and a longer time period will be provided to facilitate the transition before enforcement begins.

14. Uniform Enforcement

Comment:
One commenter suggested that CBP take steps to ensure that it enforces the final rule uniformly across all points of export because some rail carriers export cargo to northern, southern, and maritime borders.

Response:
CBP's goal is to make enforcement uniform in the rail export environment and to have consistent enforcement procedures where feasible. CBP notes that each port of export is unique and presents its own challenges. CBP will endeavor to have uniform enforcement at every port to the best of its ability.

15. Comments on Cost Benefit Analysis

Comment:
A few commenters expressed concern about the requirement for house-level data. They recognized CBP's need for house-level data and stated that implementing this change for NVOCCs will necessitate “significant investments” in programming, process adjustments, training, and associated costs and will require time to effectuate. These commenters encouraged CBP to address these concerns in the submission of the final rule to ensure effective and practical implementation that aligns with industry operations.

Response:
CBP acknowledges that the modernization of the export manifest process, may result in trade members adjusting their business practices in order to comply with this regulation. However, CBP believes this final rule provides the best option to transition to electronic environments and implement the Trade Act authority in a way that also improves CBP's enforcement efforts on cargo security and smuggling prevention. CBP notes that the data elements being requested exist before the deadlines established for the data transmission. Trade members may need to adjust their current processes in order to meet the EEM data requirements. CBP agrees with the concern raised by these commenters that there could be significant investments required for NVOCCs and other non-rail carrier trade members that elect to participate and

directly transmit EEM data to CBP. However, CBP notes that for these trade members direct participation is voluntary and therefore they will only directly participate if it makes business sense for them to do so.

In the NPRM, CBP specifically requested comments from trade members on these potential costs to adjust business practices; however, no specific monetized estimates were provided. These commenters suggest there would be “significant investments,” but this statement lacks the specificity needed for CBP to monetize such investments in the economic analysis for this rule. However, CBP acknowledges that the investments for these parties if they choose to participate directly as rail EEM transmitters could be significant, and they would likely also incur some cost savings as well. CBP's economic analysis for the NPRM included a discussion of these costs and CBP has added to that discussion based on the information received in this public comment.

Comment:
One commenter stated that the cost-benefit analysis provided was flawed and failed to account for significant costs that would be imposed by this rule. The commenter asserted that the rail network is not designed for disconnecting rail cars for inspection outside of the port of export/rail yard. The commenter suggested that implementing the necessary infrastructure and equipment at all points of export would cost millions of dollars in land acquisition and rail construction, and significant delays in rail transportation at certain points of export. The commenter also suggested that trade members would be required to develop new programming to provide the new data elements to CBP. Furthermore, the commenter stated that because this NPRM introduced a CBP system-generated inspection not currently done at export, it would result in increased delays of rail traffic and not time benefits to the rail carriers.

Response:
CBP disagrees that the rule will necessitate the disconnection of rail cars for inspection outside of the port of export/rail yard. CBP believes this rule provides sufficient time for the data to be provided so CBP can complete a proper risk assessment such that all cargo inspections will be conducted before the train departs from the final port of export. CBP retains the authority to conduct inspections, when necessary, even if it must be conducted between the train's departure from the final port of export and crossing the international border. In such an instance, this will result in a delay in the train's departure from the United States and will result in a cost to the rail carrier. CBP notes that these scenarios would be in the very rare cases where a significant imminent threat is identified after the train is given clearance to depart the United States from the final port of export and has not yet crossed the international border, and CBP will request the train be routed to where an inspection can be conducted. CBP does not quantify these costs because they are very unlikely to occur. CBP's goal is to conduct such inspections with the least amount of disruption to the trade whenever possible.

Additionally, CBP notes that the rule's requirements for data transmissions prior to departing the U.S. port of export will further limit the number of inspections that will need take place between the U.S. port of export and crossing the international border. CBP plans to move forward with the existing infrastructure at border crossings and does not expect rail carriers or CBP to invest in these significant costs as stated by this commenter.

CBP acknowledges that rail carriers will incur systems costs, and CBP has accounted for the systems costs to rail carriers in the analysis for this rule. Regarding the system costs to other trade members, CBP notes that their participation in providing EEM data directly to CBP is voluntary and as such CBP assumes that they will only do so if it were beneficial to their business. CBP requested feedback on those potential costs but did not receive specific feedback during public comments to provide an estimated amount to the average non-rail carrier participant. The feedback received from the rail EEM Test participants suggested that providing the EEM data to CBP did not result in any increased delays of rail traffic.

Comment:
One commenter stated that the rule is based on a Test pilot program that was limited in its application and does not account for concerns raised in the comment provided. Because the pilot was limited in application and scope, the commenter stated that the Test pilot program is not a good representation of costs to trade members when this rule is finalized. The commenter stated that not all Class I carriers were involved in the Test and those that were, did not have every possible point of export included in the Test. The commenter stated that no points of export at the southern border were included in the Test because these are more difficult points of export. Lastly, the commenter stated that CBP wrongfully overestimated the high compliance rate for rail carriers transmitting data 24 hours before departure and noted that one participant had to redesign its operations to account for an inspection at the border crossing rather than the yard.

Response:
CBP has been conducting the Electronic Export Manifest Test for Rail Cargo since 2015. The rail EEM Test data received was limited by what Test participants were willing to provide. CBP did not limit Test participants to provide rail EEM Test data only at specific ports of export. Because participation in the Test was voluntary, the participants, not CBP, determined what data to provide to CBP. CBP based its cost estimates on the information that was available from the Test and based on feedback from the rail EEM Test participants. CBP provided its best estimates on the costs associated with this rule based on the information available to CBP and the participation in the pilot. CBP acknowledges there may be a range of estimates because not all experiences may be the same. However, CBP will endeavor to perform all inspections with the least inconvenience to the trade. CBP anticipates that the deadline requirements of this rule will allow CBP to conduct most, if not all, risk assessments and identify potential cargo that may need to be inspected prior to the train's departure from the United States.

CBP acknowledges this comment and concern that Test data was not provided at all port of export locations and that there may be differences between different ports of export and that there may be certain industry practices that could create unique challenges resulting in costs. However, CBP has taken this comment into consideration and incorporated these concerns into the analysis for this rule. Since this comment did not provide quantitative estimates for these costs, CBP can only provide a qualitative discussion of these potential costs to trade members that did not participate in the rail EEM Test.

Comment:
One commenter disagreed with CBP's assumption that there would be negligible additional cost to rail EEM participants to comply with the bond requirements. Specifically, the commenter's concern is for rail carriers that would be responsible for transmitting all data elements if no other party elects to participate, and then the rail carriers would be liable for the liquidated damages based on data that the rail carrier was provided and about which the carrier lacked direct knowledge.

Response:
CBP notes that rail carriers may be required to be the EEM

transmitter for all data if no other eligible party elects to directly transmit the data. However, if the parties with the most direct knowledge of the information decide not to transmit the EEM data directly to CBP, they must provide that information to rail carriers in a timely manner, or the cargo cannot be exported. Additionally, the regulations provide that, where a transmitting party (including a rail carrier that transmits EEM data to CBP) is not reasonably able to verify information that it receives from another party in accordance with ordinary commercial practices, it may electronically transmit the unverified information to CBP based on what the transmitting party reasonably believes to be true.

CBP also notes that all rail carriers that engage in carrying goods for export out of the United States are also engaged in carrying goods for import into the United States and therefore already have a requirement to secure and obtain a bond, so CBP expects adding this provision will not add a significant cost to these rail carriers.

VII. Regulatory Analyses

A. Executive Orders 12866, 13563, and 14192

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. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 14192 (Unleashing Prosperity Through Deregulation) directs agencies to significantly reduce the private expenditures required to comply with Federal regulations and provides that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations.”

The Office of Management and Budget (OMB) has designated this rule a “significant regulatory action” under section 3(f) of Executive Order 12866, although not economically significant under section 3(f)(1). Accordingly, the rule has been reviewed by the Office of Management and Budget.

This final rule is considered an Executive Orde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2026-17390. Public record. Not legal advice.