Importer Security Filing and Additional Carrier Requirements (formerly known as "10 + 2")

The Office of Information and Regulatory Affairs (OIRA) completed its final review of the Importer Security Filing and Additional Carrier Requirements regulations ("10 + 2") on November 6, and the final rule was published in the Federal Register on November 25.

While we have not yet had ample time to fully study and examine the final ruling, here are some highlights:

Congress / Customs is still taking comments until 6/1/2009.
The effective date is January 26, 2009, and the compliance date will be one year from the effective date.
For some items, CBP is allowing importers, in their initial filing, to provide a range of acceptable responses based on facts available to the importer at the time, in lieu of a single specific response (which may become known to the importer only at a later time). Importers will be required to update their filings with respect to these elements as soon as more precise or accurate information is available, but at least 24 hours before loading.
Penalties have been changed from the value of the shipment to $5,000.00 per transaction.

To follow is the news release that was published by Customs on November 24, 2008 regarding this final rule:

For Immediate Release
DHS Press Office
Contact: 202-282-8010

Overview

The Importer Security Filing and Additional Carrier Requirements interim final rule will help prevent terrorist weapons from being transported to the United States by requiring both importers and carriers to submit additional cargo information to U.S. Customs and Border Protection (CBP) before the cargo is brought into the United States by vessel. This interim final rule follows a notice of proposed rulemaking (NPRM) published on January 2, 2008. Through the rulemaking process, CBP collected and evaluated approximately 200 public comments and has made significant enhancements to the proposed rule, as outlined in the interim final rule.

The data submissions required under the interim final rule must be delivered to CBP by way of a CBP-approved electronic data interchange system. This information will improve CBP's ability to identify high-risk shipments in order to prevent smuggling and ensure cargo safety and security.

These regulations specifically fulfill the requirements of the Security and Accountability for Every (SAFE) Port Act of 2006 and the Trade Act of 2002, as amended by the Maritime Transportation Security Act of 2002.

Existing Requirements for Carriers and Importers

Carriers are currently required to submit advance cargo information for vessels no later than 24 hours before the cargo is laden aboard a vessel at a foreign port. This is commonly referred to as the "24-Hour Rule." Carriers are not currently required to submit vessel stow plans or container status messages to CBP.

Under existing requirements, importers of record are required to file entry information with CBP within 15 calendar days of the date of arrival of a shipment at a United States port of entry. In addition, within 10 working days of the entry of the merchandise, entry summary information must be submitted. Importers are not currently required to submit advance cargo information to CBP.

New Carrier Requirements

In addition to the existing carrier requirements pursuant to the 24-Hour Rule, the interim final rule requires carriers to submit a vessel stow plan and container status messages for certain scenarios pertaining to cargo containers destined to the United States.

Vessel Stow Plan: Carriers must transmit the stow plan, via the Automated Manifest system (AMS), secure file transfer protocol or email, so that it is received by CBP no later than 48 hours after the carrier's departure from the last foreign port. For voyages less than 48 hours, CBP must receive the information prior to the vessel's arrival at the first port in the U.S. The stow plan must include the vessel name, vessel operator and voyage number. With regard to each container, the vessel stow plan must also include the container operator and the equipment number, equipment size and type, stow position, hazmat code, port of lading and port of discharge.
Container Status Messages (CSM): CSMs must be submitted to CBP daily for certain events relating to all containers laden with cargo destined for the U.S. by vessel. Carriers must submit a CSM when any of the required events occurs if the carrier creates or collects a CSM in its tracking system reporting that event. For each CMS submitted, the following information must be included: event code being reported, container number, date and time of event being reported, status of the container (empty or full), location where the event took place, and vessel identification associated with the message if the container is associated with a specific vessel. This must be done no later than 24 hours after the message is entered into the carrier's equipment tracking system.

New Importer Requirements

The interim final rule requires Importer Security Filing (ISF) importers, as defined in the interim final rule, or their agents to provide eight data elements, generally no later than 24 hours before the cargo is laden aboard a vessel destined to the United States, for shipments consisting of goods intended to be entered into the United States and goods intended to be delivered to a foreign trade zone (FTZ). Those data elements include:

Seller;
Buyer;
Importer of record number / FTZ applicant identification number;
Consignee number(s);

Manufacturer (or supplier);
Ship to party;
Country of origin; and
Commodity Harmonized Tariff Schedule of the United States (HTSUS) number.

The rule provides flexibility for importers with respect to the submission of four of these data elements. In lieu of a single specific response, importers may submit a range of responses for each of the following data elements: manufacturer (or supplier), ship to party, country of origin, and commodity HTSUS number. The ISF must be updated as soon as more accurate or precise data becomes available and no later than 24 hours prior to the ship's arrival at a U.S. port.

The ISF will also need to include two data elements that must be submitted as early as possible, but no later than 24 hours prior to the ship's arrival at a U.S. port. These data elements are:

Container stuffing location; and
Consolidator

In addition, the rule requires that the Importer Security Filing for shipments consisting entirely of foreign cargo remaining on board (FROB) and shipments consisting entirely of goods intended to be transported in-bond as an immediate exportation (IE) or transportation and exportation (T&E), must provide five elements. Importer Security Filings for IE and T&E shipments must be submitted no later than twenty-four hours before the cargo is laden aboard a vessel destined to the United States and Importer Security Filings for FROB must be submitted any time prior to lading. The following five data elements must be submitted for FROB, IE and T&E shipments:

Booking party;
Foreign port of unlading;
Place of delivery;
Ship to party; and
Commodity HTSUS number.

Structured Review and Flexible Enforcement Period

CBP has made several significant changes from the proposed rule, based on public and stakeholder feedback. The interim final rule also includes a delayed compliance date of 12 months after the interim final rule takes effect. During this 12-month period, CBP will show restraint in enforcing the rule. CBP will take into account difficulties that importers may face in complying with the rule as long as importers are making a good faith effort and satisfactory progress toward compliance.

In addition, CBP will conduct a review to determine any specific compliance difficulties that importers and shippers may experience in submitting all 10 data elements 24 hours before lading. The structured review will cover a range of enterprises, from small to large, and will include both integrated and nonintegrated supply chains.

Comment Period and Effective Date

The Importer Security Filing and Additional Carrier Requirements interim final rule has been submitted to the Federal Register and will take effect 60 days after publication. CBP invites written comment on the six data elements for which some type of flexibility has been provided, and on the revised Regulatory Assessment and Final Regulatory Flexibility Analysis. Comments must be received on or before June 1, 2009, which is also the end of the information gathering phase of the structured review.

Based on the information obtained during the structured review and public comment periods, CBP will conduct an analysis of the elements subject to flexibility. The analysis will examine compliance costs for various industry segments, the impact of the flexibilities, the barriers to submitting the data 24 hours prior to lading, and the benefits of collecting the data. Based on the analysis, DHS will determine whether to eliminate, modify or maintain these requirements.

For additional information, please visit www.cbp.gov. Questions may be sent to Security_Filing_General@cbp.dhs.gov.

For further information, please visit any of the following links:

Security Filing ("10+2") on the Customs site:
http://www.cbp.gov/xp/cgov/trade/cargo_security/carriers/security_filing/

The Final Rule as Published in the Federal Register on November 25:

Text version: http://edocket.access.gpo.gov/2008/E8-27048.htm
PDF version: http://edocket.access.gpo.gov/2008/pdf/E8-27048.pdf

New Online HTS Reference Tool

Cargo Systems Messaging Service (CSMS) message #08-000315 was published by CBP (Customs) on November 20:

"At the September TSN, the ITC demonstrated their new HTS Online Reference Tool. The USITC is happy to announce that the new HTS Online Reference Tool now available online for preview viewing at http://hts.usitc.gov/ . This new reference tool allows users to jump from an item to the related chapter 99 item showing temporary and seasonal rates when needed. It links to Customs Classification Rulings at the 10-digit level so users can see that directly, as well as trade data on the item. It allows searches, including by CAS numbers. It has a thesaurus feature which allows searches by modern terms for products."

The ITC is soliciting comments or suggestions about the tool, and the CSMS message includes instructions for submitting those comments.

All CSMS messages can be accessed online:
http://apps.cbp.gov/csms/csms.asp?display_page=1.

The Consumer Product Safety Improvement Act (CPSIA)

This legislation covers Children's products, ATVs, and other consumer products. The rules pertaining to this act are being created, amended, and finalized constantly. Here are just a few of the notices/rules that were published in mid-November:

On Monday, November 10, the U.S. Consumer Product Safety Commission (CPSC) issued a final rule by unanimous vote, addressing the conformity certification required for consumer products subject to safety rules under CPSC jurisdiction.

"The Commission addressed three major issues: 1) who should supply the certificate; 2) how the certificate can be filed; and 3) CPSC enforcement of general certification.

First, the certification process will now be streamlined, by limiting the number of parties who must issue conformity certifications unless a preexisting Commission product standard requires otherwise. The Commission determined that for imported products, only the importer needs to issue the conformity certificate.

Foreign manufacturers and private labelers of imported products do not need to issue certificates, and they do not need to be listed as parties on certificates. For products manufactured in the United States, only the domestic manufacturer needs to issue the certificate. Private labelers do not need to issue certificates, and do not need to be listed as parties on certificates.

Second, the rule confirms that electronic means can be used to meet the certification requirement in the Consumer Product Safety Improvements Act of 2008 (CPSIA) and that conformity certifications can accompany the product and be furnished to distributors and retailers by a variety of electronic means. Electronic certificates can also be posted on a website for inspection or included with other electronic documents accompanying shipments through Customs, so long as the certificates can be produced immediately for inspection.

Finally, the agency intends to focus its enforcement efforts on a product's compliance with our safety requirements. While the Commission recognizes that every company is expected to make its best efforts to comply promptly with the new certificate requirements, the agency intends initially to focus more on compliance with the safety rules underlying the certificate, rather than on the certificate or form of the certificate itself."

The final rule was published in the Federal Register on November 18:
http://www.cpsc.gov/businfo/frnotices/fr09/certification.html

Federal Register: November 14, 2008
http://www.cpsc.gov/businfo/frnotices/fr09/atvfinal.html

"The recently-enacted Consumer Product Safety Improvement Act of 2008 (``CPSIA''), sets forth several requirements for all terrain vehicles (``ATVs''). Among these, the CPSIA requires the United States Consumer Product Safety Commission to publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA 1-2007).

This document satisfies that requirement and reviews other provisions of the CPSIA that apply to ATVs. The rule takes effect April 13, 2009. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of April 13, 2009."

Federal Register: November 17, 2008
http://www.cpsc.gov/businfo/frnotices/fr09/lrtgafin.html

"The Consumer Product Safety Commission (CPSC) is issuing a final rule for advertisements of certain toys and games.

Section 105 of the Consumer Product Safety Improvement Act of 2008, Public Law 110-314, 122 Stat. 3016 (August 14, 2008), ("CPSIA"), directs the Commission to promulgate regulations to effectuate this section with respect to advertising for certain toys and games in catalogues and other printed materials not later than 90 days after enactment. The final rule details requirements regarding the size and placement of the cautionary labeling and the use of abbreviated warnings. The rule exempts catalogues circulated solely between businesses from the rule's requirements, except where the recipient business is one that could be expected to be purchasing the product for the use of children rather than for resale. There is a grace period of 180 days for distribution of catalogues and other printed materials printed prior to the effective date of February 10, 2009.

The effective date of this rule with respect to catalogues and other printed materials is February 10, 2009. The Commission is providing a grace period of 180 days, or until August 9, 2009, during which catalogues and other printed materials printed prior to February 10, 2009 may be distributed without the required cautionary statements. Catalogues and other printed materials that are printed on or after February 10, 2009 must have the required cautionary statements. All catalogues and other printed materials distributed on or after August 9, 2009 must comply with this rule, regardless of when they were printed. This rule addresses only catalogues and other printed materials; however, the CPSIA extends the requirements to Internet advertisements as well. Internet advertisements must comply with Section 24 of the Federal Hazardous Substances Act as amended by the CPSIA no later than December 12, 2008."

Current CPSIA resources can be accessed here: http://www.cpsc.gov/about/cpsia/cpsia.html.

Resources regarding CPSIA and the other areas covered by The CBP Import Safety Priority Trade Issue (i.e., Toxic Substance Control Act, FDA/Bioterrorism, Agriculture, etc.) can be accessed at the following site: http://www.cbp.gov/xp/cgov/trade/priority_trade/import_safety/

2009 Federal Holidays

Customs has published the list of Federal Holidays for 2009.

JANUARY 1:	NEW YEAR'S DAY
JANUARY 19:	MARTIN LUTHER KING, JR'S BIRTHDAY (OBSERVED)
FEBRUARY 16:	PRESIDENT'S DAY
MAY 25:	MEMORIAL DAY
JULY 3:	INDEPENDENCE DAY (OBSERVED)
SEPTEMBER 7:	LABOR DAY
OCTOBER 12:	COLUMBUS DAY
NOVEMBER 11:	VETERANS DAY
NOVEMBER 26:	THANKSGIVING DAY
DECEMBER 25:	CHRISTMAS DAY

If you have any questions or comments regarding the Compliance eNewsletter,
please contact Paul Codere from the Customs Brokerage Department.

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