The Canadian International Freight Forwarders Association (CIFFA)is lobbying the U.S. Customs Service to keep all marine FROB (freight remaining on board) as well as all non-U.S. origin/destination in-transit cargo manifest information from being available for public disclosure in the U.S.
CIFFA had brought its concerns up with the Canadian government in mid December but having received no response decided to approach U.S. Customs on its own.
"It is with much consternation that to this day we have not heard back from our own Government.Thus, due to the inability of our lethargic Government to grasp the importance of this issue, CIFFA has decided to make a direct appeal to US Customs to have at least Canadian export data protected from frivolous publication by PIERS/Journal of Commerce," the association comments in its newsletter to members.
Late last year new U.S. rules includedFROB among the cargo that must be reported in detail to U.S. Customs 24 hours prior to being laden on board the vessel at the foreign port. Under this new rule, detailed cargo manifest information such as actual Shipper’s name and address, actual Consignee’s name and address, precise cargo description, quantity and weight, cargo origin and country of final destination must be reported to U.S. Customs in the same manner as import cargo that are to be discharged at U.S. ports.
The FROB cargo manifest information is to be submitted by the ocean carrier or by the non-vessel operating common carrier that has posted an international carrier bond with U.S. Customs and participates in the Automated Manifest System (if the NVOCC wished to avoid disclosing its cargo manifest information to the ocean carrier for inclusion in its manifest).
"Although we are by no means attempting to comment on the legitimate publication of detailed cargo manifest information on U.S. imports and exports under U.S. law, our association as well as other Canadian importers and exporters associations are quite concerned about cargo manifest information on Canadian imports and exports via U.S. ports in transit to or from Canada that is being disclosed and marketed by trade intelligence services, and it now appears that even for cargoes loaded at Canadian and foreign ports, their manifest details may also be subject to public disclosure owing to the FROB rule," Tony Young, Chairman of the Seafreight Committee at CIFFA wrote to U.S. Customs Service.
He adds that it’s CIFFA’s view that a proposed rule that allows the ocean carrier or the NVOCC to apply for confidential treatment of cargo manifest information on behalf of importers and consignees does not go far enough.
Young cites the following examples to illustrate his case:
First, it appears such importers and consignees must be "persons" in the United States within the context of the Tariff Act. In the case of FROB or cargo originating or destined to Canada via U.S. ports, such entities are not "persons" in the United States, in the legal sense. Second, the proposed rule does not address requests for confidential treatment of cargo manifest information on behalf of "shippers", leading one to conclude that it applies only to U.S. importers and U.S. consignees. Third, while the proposed rule suppresses the disclosure of shipper and consignee names, other pertinent and sensitive cargo manifest information such as cargo origin, country of final destination, detailed description and cargo volume are not withheld from disclosure. Fourth, the application for confidential treatment must be made for each and every single consignee (and shipper) and is only good for a period of two years.
"Werequest that U.S. Customs Service include in the proposed rulemaking, an explicit provision to exclude all FROB as well as all non-U.S. origin/destination in-transit cargo manifest information from being subject to Section 1431c of the Tariff Act of 1930, by administratively declaring such inward and outward FROB and in-transit cargo manifest information to be "information not available for public disclosure" in its totality under the provisions of Subsection 2B and Subsection 3 of Section 1431c of the Act."
Those sections of the Act read:
(2) The information listed in paragraph (1) shall not be available for public disclosure if (B) the information is exempt under the provisions of section 552(b)(1) of title 5. (3) The Secretary of the Treasury, in order to allow for the timely dissemination and publication of the information listed in paragraph (1), shall establish procedures to provide access to manifests. Such procedures shall include provisions for adequate protection against the public disclosure of information not available for public disclosure from such manifests.
Young points out that since Section 552(b)(1)(A) of the Freedom of Information Act cited in Section 1431c(2)(B) of the Tariff Act allows for matters to be kept secret in the interest of national defense or foreign policy, by Executive order, then third country, in-transit cargo manifest information are confidential data obtained under CSI solely for the purpose of maritime security, and properly constitute such matters.