Additional Details on CBP's 10+2 FAQ (Part Final - ACE, Enforcement)
U.S. Customs and Border Protection recently posted to its Web site a frequently asked question (FAQ) document regarding its interim final rule that amended 19 CFR effective January 26, 2009, to require Security Filing (SF) information from importers and additional information from carriers (10+2) for vessel (maritime) cargo before it is brought into the U.S.
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CBP notes that its responses to the FAQs are for informational purposes only and are non-binding. Questions relating to specific facts and circumstances of a prospective transaction can be the subject of a ruling request under 19 CFR Part 177. CBP also states that it will be continually updating and clarifying its FAQ document as necessary.
This is Part VII, the final part of a multi-part series of summaries detailing CBP's 10+2 FAQ document. (See ITT's Online Archives or 02/04/09, 02/09/09, 02/11/09, 02/23/09, 02/26/09, and 03/02/09 news, 09020410, 09020915, 09021115, 09022315, 09022610, and 09030210 for Parts I - VI.)
Highlights of the FAQs include:
ACE and ISFs from importers. In response to a question on whether CBP will create a Web portal in Automated Commercial Environment (ACE) so importers can file their own ISFs, CBP states that it will continue to explore additional ISF functionality as ACE is developed.
ACE and performance report cards. In response to a question on whether Customs brokers will have the ability to query ISF performance reports from the I Track/ACE Portal and whether account managers will have access to this information, CBP notes that at this time it will not make available report cards through ACE; however, it is developing a reporting mechanism that will be provided to the ISF filers. CBP reports that account managers will have access to these report cards.
(NCBFAA has reported that the first progress reports are expected to be issued in mid-March 2009 and will be issued to filers only at this time. See ITT's Online Archives or 03/02/09, 09030299 1, for BP summary.)
Flexibility for data elements after flexible enforcement period expires. One questioner asks if flexibility (i.e. acceptable range of responses) is only for the flexible enforcement period1 or is it CBP's intent to keep the flexibility in the filing after the flexible enforcement period expires?
CBP answers that the flexibility as to interpretation for the Manufacturer (supplier), Ship to Party, Country of Origin, and HTS number2 will remain in place unless and until CBP determines that a change should be made. If CBP determines that such a change is necessary, CBP will amend the regulations accordingly.
Enforcement restraint during structured review, flexible enforcement period. In response to a question of whether an ISF importer whose system will not be ready until April or May of 2009 should get a third party to file its ISF, CBP states that during the structured review and flexible enforcement period, in order to provide the trade sufficient time to adjust to the new requirements and in consideration of the business process changes that may be necessary to achieve full compliance, CBP will show restraint in enforcing the rule, taking into account difficulties that importers may face in complying with the rule, so long as importers are making satisfactory progress toward compliance and are making a good faith effort to comply with the rule to the extent of their current ability.
DNL messages during flexible enforcement period.In response to the question of whether CBP will issue do not load (DNL) messages during the initial flexible enforcement period, CBP states that it reserves the right to take enforcement action, including the use of the DNL option, in order to mitigate potential security and safety risks. However, during the structured review and flexible enforcement period, CBP will not issue a DNL solely based upon the non-compliance with the new ISF requirements. Therefore, the simple failure to file an ISF will not, in and of itself, result in a DNL action.
Liquidated damages (beginning January 26, 2009). In response to questions, CBP states that it will not issue a liquidated damages case beginning January 26, 2009 if (a) the importer does not file an ISF or (b) the importer files an incorrect ISF.
Liquidated damages (on/after January 26, 2010). In response to a question of whether CBP's January 26, 2010 enforcement date will be interpreted by date of arrival or date of foreign lading for purposes of liquidated damages, CBP states that pursuant to new 19 CFR 149.2(g), ISF Importers must comply with the ISF requirements on and after January 26, 2010. Therefore, CBP may assess liquidated damages for ISFs that are required to be submitted on January 26, 2010, for ISFs that are not complete, accurate, and/or timely. For example, for goods that are to be laden at 12:01 A.M. on January 27, 2010, the ISF must be submitted no later than 12:01 A.M. on January 26, 2010.
Liquidated damages (general). In response to a question of whether there can be multiple violations on one ISF, CBP states that while there may be multiple errors on an ISF transmission, CBP will issue liquidated damages for $5,000 for each ISF transmission that is not timely, complete and/or accurate.
Implementation progress as mitigating factor. In response to questions, CBP states it will consider an entity's progress in the implementation of the rule during the delayed enforcement period as a mitigating factor in any enforcement action following this period.
NOTE - The information regarding implementation progress as a mitigating factor replaces the erroneous information contained in an earlier ITT summary that was based on a CBP handout suggesting (due to a formatting issue) that this mitigating factor was only available for the "flexible requirements." (See ITT's Online Archives or 01/15/09 news, 09011505, for corrected BP summary.)
1sometimes referred to as 'delayed enforcement period;' however, the term 'flexible enforcement period' is more commonly used by CBP.
219 CFR 149.2(f) pertains to the flexible requirements for four of the data elements. (Note that 19 CFR 149.2(b), among other things, pertains to the flexible requirements for the timing of transmission for two of the 10 ISF elements.)
(See ITT's Online Archives or 01/27/09 news, 09012710, for previous BP summary on the availability of this FAQ document.
See ITT's Online Archives or 01/27/09 news, 09012705, for BP summary of DHS' confirmation that 10+2 began as scheduled on January 26, 2009.
See ITT's Online Archives or 11/25/08, 11/26/08, 12/03/08, 12/09/08, 12/10/08, 12/17/08, 12/19/08, 12/22/08, and 12/23/08 news, 08112505, 08112605, 08120305, 08120905, 08121010, 08121710, 08121905, 08122205, and 08122310, for Parts I-IX on the details of CBP's 10+2 interim final rule.
See ITT's Online Archives or 01/15/09 news, 09011505, for BP summary of CBP's discussion, clarification of its 10+2 interim final rule in which CBP announced that FAQs would be forthcoming.)
CBP's 10+2 FAQs (dated 01/23/09) available at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/carriers/security_filing/10_2faq.ctt/10_2faq.doc.