CBP's Proposed Rule on 10+2 for Maritime Cargo (Part III - Comments on Importer SF Elements)

CBP states that this additional information, which would be submitted by way of a CBP-approved electronic data interchange system¹, will further improve the ability of CBP to identify high-risk shipments in order to prevent the smuggling of terrorist weapons into the U.S. and ensure cargo safety and security.

Written comments on this proposed rule are due by March 3, 2008.

This is Part III of a multipart series of summaries of this proposed rule, and highlights CBP's responses to comments that were received on the 10+2 Strawman, as well as the recommendations of the Departmental Advisory Committee on Commercial Operations of Customs and Border Protection and Related Homeland Security Function's (COAC) Advance Data Subcommittee, regarding the importer SF elements. See future issues of ITT for summary of additional CBP responses to comments and recommendations received.

Submission of All Required Elements by One Party, Use of Agent

A commenter stated that the importer SF should be done by a single party; however, that party should be permitted to rely on information from more than one source for the purpose of preparing the filing.

CBP responded that it is proposing to require that one party aggregate and submit all required elements. CBP is also proposing to allow importers to designate an agent to submit the filing on behalf of the importer.

Alteration of Business Practices, Ultimate Responsibility of Importer

CBP added that while it understands that some business practices could need to be altered to timely obtain the required information for the importer SF, CBP does not anticipate that these changes would be unduly burdensome.

CBP also noted that under the proposed regulations, the importer, as defined in the proposed regulations, is ultimately responsible for the timely, accurate, and complete submission of the importer SF.

10+2 Filing Requirement to be Phased-In

A commenter suggested that once the final regulations are effective, CBP should adopt a phase-in period, during which CBP should publish frequently asked questions (FAQs) addressing issues associated with the regulations and specific guidelines on how the phase-in will work and what rules will apply. The commenter adds that CBP should include outreach to other countries.

CBP agreed with the commenter. Regardless of when the regulations on this subject go into effect, CBP states that it will adopt a phase-in enforcement process similar to what was utilized when the 24-Hour Rule and Trade Act regulations were implemented.

Depending on the circumstances, CBP stated that it may take an "informed compliance" approach following the effective date of this rule. Through the phase-in enforcement process, CBP states that it will work with the trade to ensure informed compliance, issue FAQs, and make other outreach efforts.

No Exemption for Tier 3 C-TPAT Members

A commenter requested that Tier 3 Customs-Trade Partnership Against Terrorism (C-TPAT) members should be exempt from the importer SF requirement or, in the alternative, should be required to submit fewer than all of the required importer SF elements as Tier 3 C-TPAT supply chains have already been vetted by CBP.

CBP stated that it will use the importer SF to assess the risk of individual shipments. Therefore, for purposes of this rulemaking, all cargo arriving to the U.S. by vessel, regardless of the parties involved, would be subject to the importer SF requirements.

CBP Working to Make SF Data Consistent with WCO SAFE Framework, Etc.

A commenter suggested that the importer SF data and definitions should align with those of the World Customs Organization (WCO) Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework).

CBP agreed and stated that it is working with the WCO to develop an amendment process that will enable the WCO SAFE Framework to adapt to changes in the international security environment.

In addition, CBP stated that it will seek to make data elements consistent with (or have data elements included in) the WCO Data Model.

Test of the Concept & Mechanics of Importer SF

A commenter suggested that there should be a test of the concept and the mechanics of the advance data elements filing with a diverse, international volunteer group before the concept moves to the phase-in period.

In response, CBP stated that it is working with a wide variety of volunteers from the world trade community to test the trade's ability to provide data, including some elements of the importer SF, to CBP. The test results will assist CBP in understanding the various formats that are being used in the international trade community to share supply chain information.

Use of Importer SF as Part of an Entry Filing

A commenter suggested that the SF should require an Harmonized Tariff Schedule (HTS) number at only the 6 digit level; however, the system used for filing should be capable of accepting up to a 10 digit HTS number.

CBP agreed with this suggestion and stated that under the proposed regulations, the importer, as defined in the proposed regulations, would be required to provide the HTS number 24 hours prior to lading at the 6 digit level. However, importers may submit the HTS number up to the 10 digit level. CBP noted that importers must use the 10 digit level if they plan to use the importer SF as part of an entry filing.

If an importer chooses to have applicable elements of the importer SF used for entry purposes, the importer SF would have to be self-filed by the importer or filed by a licensed customs broker.

Linking of Importer SF Data Elements at Line Item Level, Foreign Agents

A commenter stated that there should be no mandatory linking of the HTS number to the country of origin and manufacturer (or supplier) name and address data elements. The commenter added that data in question is also generally not provided at the line item level to foreign entities such as freight forwarders.

CBP disagreed. CBP stated that under the proposed regulations, the manufacturer (or supplier) name and address, country of origin, and commodity HTS number elements would be required to be linked to one another at the line item level.

CBP noted that the data is already provided to CBP at the line item level for entry and entry summary purposes. If an importer, as defined in the proposed regulations, would choose to use a foreign freight forwarder as an agent for importer SF purposes, the importer would need to provide this data to that party at the line item level.

Country of Origin Definition

A commenter suggested that the current regulatory definition of country of origin, as articulated by existing CBP regulations and free trade agreements, should remain an option for satisfying the importer SF definition of country of origin.

CBP agreed and stated the proposed definition for this element is consistent with the country of origin as required on CBP Form 3461. CBP added that under the proposed regulations, the country of origin is required to be provided for all goods that have been listed at least at the 6 digit HTS level.

¹The current approved electronic data interchange systems for the importer SF are the Automated Broker Interface (ABI) and the Vessel Automated Manifest System (AMS). CBP states that if it approves a different or additional electronic data interchange system, CBP will publish notice in the Federal Register.

• Written comments on the proposed rule are due by March 3, 2008 and may be submitted on all aspects of the proposal

(See ITT's Online Archives or 01/03/08 news, 08010305, for Part II of BP's summary on this proposed rule, with a link to Part I.)

CBP contact - Richard Di Nucci (202) 344-2513

CBP proposed rule (FR Pub 01/02/08) available at http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/E7-25306.pdf