E7-9350. Automated Commercial Environment (ACE): Terms and Conditions for Account Access of the ACE Secure Data Portal

AGENCY:

U.S. Customs and Border Protection; Department of Homeland Security.

ACTION:

General notice.

SUMMARY:

This notice sets forth a revision of the terms and conditions that must be followed as a condition for access to the Automated Commercial Environment (ACE) Secure Data Portal (ACE Portal). These terms and conditions supersede and replace the Terms and Conditions documents previously signed and submitted to U.S. Customs and Border Protection (CBP) by ACE Portal Account Owners. The previous Terms and Conditions documents were not published in any public document but were provided to ACE Portal Account applicants after their acceptance into the test. For those ACE Portal Accounts already on file with CBP with the proper Account Owner listed, no further action is required by the ACE Portal Account Owner. The principal changes to the terms and conditions include a revised definition of “Account Owner” to permit either an individual or a legal entity to serve in this capacity, new requirements relating to providing notice to CBP when there has been a material change in the status of the Account and/or Account Owner, and explanatory provisions as to how the information from a particular account may be accessed through the ACE Portal when that account is transferred to a new owner. These terms and conditions do not affect participants in ACE who have not established Portal Accounts but who do participate via less formal Non-portal Accounts.

EFFECTIVE DATES:

The terms and conditions set forth in this document must be followed as a condition for access to the ACE Portal effective immediately.

ADDRESSES:

Comments concerning this notice should be submitted to Michael Maricich via e-mail at [e-mail].

FOR FURTHER INFORMATION CONTACT:

Operational aspects for importers and brokers: Ruthanne Kenneally [phone]. Operational aspects for carriers: James Swanson at [e-mail]. Systems or automation aspects: Michael Maricich at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

On May 1, 2002, the former U.S. Customs Service, now U.S. Customs and Border Protection (CBP), published a General Notice in the Federal Register (67 FR 21800) announcing a plan to conduct a National Customs Automation Program (NCAP) test of the first phase of the Automated Commercial Environment (ACE). The test was described as the first step toward the full electronic processing of commercial importations with a focus on defining and establishing an importer's account structure. This General Notice announced that importers and authorized parties would be allowed to access their customs data via a web-based Account Portal.

The notice set forth eligibility criteria for companies interested in establishing accounts (commonly known as Portal Accounts) accessible through the ACE Portal, and limited participants in the ACE test to importers already participating in the Customs Trade Partnership Against Terrorism (C-TPAT) Program who had access to the Internet. Upon an applicant's selection into the test, Customs would require additional information for inclusion in the account profile.

Certain subsequent notices eliminated the requirement of participation in the C-TPAT Program (see, e.g., General Notice published in the Federal Register on February 1, 2005 (70 FR 5199)) and expanded the universe of eligible participants in the ACE test and the types of ACE Portal Accounts, while establishing guidelines for account management, as described below.

On February 4, 2004, CBP published two General Notices in the Federal Register, which established the ACE Truck Carrier Accounts and opened the application period for authorized importers and their designated brokers to participate in the NCAP test to implement the Periodic Monthly Statement (PMS) process (see 69 FR 5360 and 69 FR 5362, respectively). Brokers were invited to establish Broker Accounts in ACE in order to participate in the NCAP test to implement PMS.

In both February 4, 2004, General Notices, CBP advised participants that they could designate only one person as the Account Owner for the company's ACE Portal account. The Account Owner was identified as the party responsible for safeguarding the company's ACE Portal account information, controlling all disclosures of that information to authorized persons, authorizing user access to the ACE Portal account information, and ensuring the strict control of access by authorized persons to the ACE Portal information.

On September 8, 2004, CBP published a General Notice in the Federal Register (69 FR 54302) inviting customs brokers to participate in the ACE Portal test generally and informing interested parties that once they had been notified by CBP that their request to participate in the ACE Portal test had been accepted, they would be asked to sign and submit a Terms and Conditions document. CBP subsequently contacted those participants and asked them to also sign and submit a Power of Attorney form and an Additional Account/Account Owner Information form.

Non-Portal Accounts

CBP has also enabled certain parties to participate in any ACE test without establishing ACE Portal accounts. On October 24, 2005, CBP published a General Notice in the Federal Register (70 FR 61466) announcing that importers, whether or not C-TPAT certified, could become ACE non-portal accounts and participate in the PMS test, under certain conditions. Additionally, on March 29, 2006, CBP published another General Notice in the Federal Register (71 FR 15756) announcing that truck carriers who do not have ACE Truck Carrier Accounts may use third parties to transmit truck manifest information on their behalf electronically in the ACE Truck Manifest system, via EDI messaging. Parties choosing to participate in any ACE test without an ACE Portal account, such as those identified here and any others that CBP may identify in the future, are not bound by the Terms and Conditions described below.

Terms and Conditions Document

The purpose of the Terms and Conditions document that participants were asked to sign was to set forth the obligations and responsibilities of those parties accessing an ACE Portal account on behalf of an Account. An ACE Portal account, as employed in that document, referred to a party who had volunteered to participate in any ACE test and had an ACE Portal account. Presently, ACE Portal accounts may be established by any of the following business categories meeting the below listed eligibility requirements:

1. Importer:

• Possesses one or more Importer of Record (“IR”) numbers; and
• Has access to the Internet (see 67 FR 21800, May 1, 2002)

2. Broker:

• Possesses the ability to make periodic payment via ACH Credit or ACH Debit;
• Possesses the ability to file entry/entry summary via ABI (Automated Broker Interface); and
• Has access to the Internet (see 69 FR 5362, February 4, 2004)

3. Carrier:

• Possesses a Standard Carrier Alpha Code (SCAC); and
• Has access to the Internet (see 69 FR 5360, February 4, 2004)

To date, CBP has required that the Account Owner sign and submit the Terms and Conditions document prior to accessing the ACE Portal. If the Terms and Conditions document was not signed and submitted to CBP, CBP would deny access to the ACE Portal for the Account Owner. The trade community has provided numerous comments to CBP describing the burdens imposed by the requirement that the Account Owner sign and submit the Terms and Conditions document prior to accessing the ACE Portal. In response, CBP is publishing the terms and conditions governing ACE Portal access in this Federal Register Notice (FRN). The publication of the terms and conditions in this FRN replaces the requirement that the Account Owner sign and submit a Terms and Conditions document to CBP.

Changes in Policy

Any Terms and Conditions document previously signed and submitted by any Account Owner is null and void, having been superseded and replaced by the Terms and Conditions set forth in this FRN. Any present ACE Portal account with a Terms and Conditions document already on file with CBP will not be required to change the designation of its Account Owners unless the Account would prefer to designate a new Account Owner, consistent with the definition of Account Owner that is set forth below. If the Account chooses to change its Account Owner designation, the Account will be required to sign and submit to CBP an Account Owner Designation/Authorization form.

The Terms and Conditions set forth in this FRN will appear on the introductory screen for the ACE Portal. Any party seeking access to the ACE Portal will be required to accept those Terms and Conditions as set forth on the screen and in this FRN. As ACE expands and includes other portal account types beyond the importer, broker and carrier ACE Portal accounts that exist today, further modifications to the Terms and Conditions may occur.

New Definition of Account Owner

With the publication of this FRN, CBP is also amending the requirements set forth in the General Notices published on February 4, 2004 (and referenced above) pertaining to the designation of the “Account Owner.” Specifically, those notices limited the participants to the designation of only one person as the Account Owner who would be responsible for the company's portal account information. The Terms and Conditions documents presently on file with CBP define the Account Owner as “any individual identified and authorized by the Account to serve as the representative of the Account relating to the administration of access to the Account's information through the ACE Portal.”

Upon review, CBP is revising the definition of “Account Owner.” This revised definition of the Account Owner supersedes and replaces any former definition for the Account Owner. Whereas the former definition of Account Owner referred to a person or individual, CBP has now determined that a more appropriate definition for the Account Owner includes any “legal entity” identified and authorized by the Account to serve as the representative of that Account relating to the administration of access to the Account's information through the ACE Portal. Accordingly, the Account may also choose to designate itself to be its own Account Owner.

The revisions of the Terms and Conditions set forth in this FRN include additional requirements, specifically those which require notice to CBP when there has been a material change in the status of the Account and/or Account Owner, as well as access to historical information in the event of the transfer of control of an IR number, filer code, or SCAC.

Terms and Conditions

I. Overview

This document sets forth the obligations and responsibilities that must be followed as a condition for access to the Automated Commercial Environment (“ACE”) Secure Data Portal (hereinafter, “ACE Portal”).

Information contained in ACE and accessed through the ACE Portal includes confidential commercial or financial information that pertains to the Account. Information in ACE is, generally, protected under the provisions of the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and the Trade Secrets Act (18 U.S.C. 1905). No private party will be permitted access to information pertaining to an account absent the authorization of the Account. No governmental agency outside of the Department of Homeland Security will be permitted access to information that pertains to an account, unless the access is otherwise authorized by law (e.g., Freedom of Information Act, Privacy Act, Trade Secrets Act, etc.).

Information accessed through the ACE Portal that derives from another Agency of the United States Government is subject to the “Third Party Rule,” which separately requires the approval of that other agency before the information may be disseminated beyond the Account Owner and any Account User.

CBP reserves the right to monitor access to the ACE Portal. CBP also reserves the right to disapprove any authorization of access to the ACE Portal for reasons pertaining to the security of ACE, mission of CBP, or National Security. The fact that one participates in the ACE test is not confidential.

II. Account

The term “Account” as employed in this document refers to a business entity that has volunteered to participate in an ACE test. The Account may designate only one Account Owner for the Account.

III. Account Roles

The Account Owner is any individual or other legal entity identified and authorized by the Account to serve as the representative of the Account and is responsible for the administration of access to the Account's information through the ACE Portal.

If the Account chooses to designate a legal entity other than an individual as the Account Owner, the Account Owner must also designate an individual as the single point of contact for the Account. In all cases, there must be a single individual who is responsible for the administration of access to the Account's information through the ACE Portal.

A Proxy Account Owner is any individual identified and authorized by either the Account or the Account Owner to access information that pertains to the Account through the ACE Portal. The authority of the Proxy Account Owner includes the designation of other Account Users, but may be limited by the Account Owner. In no case may a Proxy Account Owner designate other Proxy Account Owners.

An Account User is any individual identified and authorized by the Account Owner or Proxy Account Owner to access information that pertains to the Account through the ACE Portal.

IV. Responsibilities

A. The Account

1. The Account must separately authorize the Account Owner to exercise any and all authority, apparent or otherwise, to fulfill the enumerated responsibilities contained herein and in any applicable Federal Register Notice, including the authority to access and control information associated with newly acquired IR number(s), SCAC(s), and/or filer code(s).

2. The Account must complete and submit to CBP the Account Owner Designation/Authorization form, located on the CBP website (http://www.cbp.gov) as proof of designation of the Account Owner. This document must be signed by both the Account and the Account Owner and submitted to the Account Administrator. In cases in which the Account Owner is an entity, the form must be signed by the single point of contact of the Account.

B. Account Owner

1. The Account Owner, as the representative of the Account with respect to all information submitted by or on behalf of the Account, is responsible for safeguarding Account information, authorizing user access to the ACE Portal account information, controlling all disclosures of that information, enforcing ACE Portal access limitations, and ensuring the strict control of access by authorized persons to the ACE Portal information.

2. The Account Owner assumes liability for any disclosure of Account information or unauthorized access to the ACE Portal and holds CBP, its officers, agents, and employees harmless from the release of any such information.

3. The Account Owner administers and controls all Proxy Account Owners and Account User access, including the designation and limitation of access, to the ACE Portal. The Account Owner is authorized to grant full or limited access to information relating to the Account (including information protected by the Trade Secrets Act or Privacy Act), through the ACE Portal.

4. The Account Owner, if not an individual, shall designate an individual as the single point of contact for the Account relating to the administration of access to the Account's information through the ACE Portal.

C. All Parties

The Account Owner, Proxy Account Owner, and any Account Users are responsible for ensuring the accuracy and confidentiality of any information they submit through the ACE Portal to CBP, and are also responsible for complying with the record-keeping requirements in accordance with law including, but not limited to, 19 U.S.C. 1508 and 1509.

V. Failure To Access the Portal

The failure of an Account Owner to access the ACE Portal for a period of ninety (90) days, consecutively, will result in the termination of access to the ACE Portal. Access may be restored by calling the Help Desk or by following the “forgot your password” prompt found on the ACE Portal log-in page.

The failure of a Proxy Account Owner or an Account User to access the ACE Portal for a period of ninety (90) days, consecutively, will result in the termination of access to the ACE Portal for the Proxy Account Owner or Account User. Access may only be restored upon re-authorization by the Account Owner.

VI. Change in the Status of the Account or Account Owner

A. Change in the Status of the Account

1. The Account must provide notice to CBP as soon as practicable, relating to a material change to the status or condition of the Account, such as a transfer of IR number(s), SCAC(s), or filer codes(s). Any transfer of control of an IR number, SCAC or filer code, will require notification to the CBP assigned Account Manager or the ACE Portal Administrator by the acquiring and acquired parties. Until such notification, CBP will not alter access to the Portal. Some material changes will also require re-application. For example, any reorganization of an Account resulting in the creation of a new company and a new IR number, SCAC or filer code, will require re-application; this does not include the addition of a subsidiary. In the event of a division or spin-off from an Account, the Account will retain access to the ACE Portal, and the new business entity formed from the division or spin-off must apply for access.

2. In the event of a material change in the status of the Account, such as the transfer of IR number(s), SCAC(s), or filer codes(s), CBP will require a brief summary of the change, signed by both the acquiring and acquired parties, including, but not limited to, the following information:

a. Company names;

b. IR numbers acquired, transferred, sold, or divested;

c. Party transferring the IR number, filer code, and/or SCAC;

d. Party acquiring the IR number, filer code, and/or SCAC;

e. Address changes; and

f. Effective date of information control.

3. When the CBP assigned Account Manager or ACE Portal Administrator is notified of the transfer of IR number(s), SCAC(s) or filer code(s), ACE Portal access will be denied for the acquired company unless the acquiring company authorizes access to the acquired company.

B. Change in the Status of the Account Owner

1. The Account must provide notice to CBP, as soon as practicable, relating to a material change in the status of the Account Owner. A material change includes the resignation of the Account Owner. The Account must designate a new Account Owner to act on behalf of the Account after notifying CBP of the change. At such time that a new Account Owner is designated for the Account, the Account must submit a new Account Owner Designation/Authorization form to the CBP assigned Account Manager or Portal Administrator.

2. If the Account Owner is not an individual, the Account Owner must provide notice to CBP, as soon as practicable, relating to a material change to the status of the single point of contact. At such time that a new single point of contact is designated for the Account Owner, the Account Owner must submit a new Account Owner Designation/Authorization form to the CBP assigned Account Manager or Portal Administrator.

VII. Access to Historical Information

In the event of a transfer of control of an IR number, filer code, and/or SCAC, the acquiring company will obtain access to historical information associated with that IR number, filer code, and/or SCAC. In the event that the acquired company also requires access to the historical information associated with the transfer of control of an IR number, filer code, and/or SCAC, the acquired company's access to that information may be obtained by either downloading the historical information prior to the date of sale or the transfer of control of an IR number, filer code, and/or SCAC, or by making a Freedom of Information Act (FOIA) request to CBP of a download of that information after the sale or the transfer of control of an IR number, filer code, and/or SCAC. In the alternative, the acquired company may request to be made a user on the acquiring company's Account.

Dated: May 9, 2007.

Jayson P. Ahern,

Assistant Commissioner, Office of Field Operations.