E9-16539. Importer Security Filing and Additional Carrier Requirements; Correction

AGENCY:

Customs and Border Protection, Department of Homeland Security.

ACTION:

Correcting amendments.

SUMMARY:

This document contains correcting amendments to the interim final rule entitled “Importer Security Filing and Additional Carrier Requirements” published in the Federal Register on November 25, 2008. The interim final rule's regulatory text was inadvertently silent regarding the time frame for transmitting an Importer Security Filing for shipments intended to be transported in-bond for immediate exportation or for transportation and exportation. This document also corrects two CBP Responses to two comments in the preamble text to align them with the regulatory text. One correction involves when a carrier's obligation to transmit container status messages ends and the other concerns when an Importer Security Filing must be updated.

DATES:

This correction is effective on July 14, 2009. The compliance dates for the regulations are set forth in 19 CFR 4.7c(d), 4.7d(f), and 149.2(g).

FOR FURTHER INFORMATION CONTACT:

Richard Di Nucci, Office of Field Operations, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On November 25, 2008, Customs and Border Protection (CBP) published an interim final rule entitled “Importer Security Filing and Additional Carrier Requirements” in the Federal Register (73 FR 71730). Pursuant to that interim final rule, an Importer Security Filing (ISF) must be submitted for cargo arriving within the limits of a port in the United States by vessel prior to arrival of the cargo. Generally, with certain exceptions, the Importer Security Filing must be filed no later than 24 hours before the cargo to which the information relates is laden aboard a vessel at a foreign port.

The interim rule added a new § 149.3 to title 19 of the Code of Federal Regulations (CFR) specifying the required ISF data elements. Paragraph (a) specifies the ten required data elements for shipments intended to be entered into the United States and shipments intended to be delivered to a foreign trade zone: (1) Seller; (2) buyer; (3) Importer of record number/Foreign trade zone application identification number; (4) Consignee numbers(s); (5) Manufacturer (or supplier); (6) Ship to party; (7) Country of origin; (8) Commodity HTSUS number; (9) Container stuffing location; and (10) Consolidator (stuffer). Paragraph (b) specifies the five required data elements for shipments consisting entirely of foreign cargo remaining on board (FROB) and shipments intended to be transported in-bond as an immediate exportation (IE) or transportation and exportation (T&E): (1) Booking party; (2) Foreign port of unlading; (3) Place of delivery; (4) Ship to party; and (5) Commodity HTSUS number.

The interim final rule also added a new § 149.2, which requires the Importer Security Filing and specifies the timing for such filing by data element. Paragraphs (b)(1), (2) and (3) specify the timing requirements for the ten ISF data elements required under § 149.3(a) for shipments intended to be entered into the United States and for shipments intended to be delivered to a foreign trade zone. Except for two of the data elements for which flexibility regarding timing is provided (container stuffing location and consolidator) these data elements are required no later than 24 hours before the cargo is laden aboard the vessel at the foreign port.^[1]

Correction to Regulatory Text

Paragraph (b) of § 149.2 provides the timing requirements for submitting the Importer Security Filing. Paragraph (b)(4) specifies the timing requirements for the five ISF data elements required under § 149.3(b) for foreign cargo remaining on board (FROB). This data must be provided prior to lading aboard the vessel at the foreign port. Paragraph (b) is silent as to when an ISF must be transmitted for the five ISF data elements required under § 149.3(b) for shipments intended to be transported in-bond for immediate exportation (IE) or for transportation and exportation (T&E). As explained below, this omission in the regulatory text was inadvertent. CBP's intention that these data elements would be required no later than 24 hours before the cargo is laden aboard the vessel at the foreign port was set forth in the ISF notice of proposed rulemaking (NPRM), which was published in the Federal Register (73 FR 90) on January 2, 2008, and is consistent with what CBP set forth in the SUPPLEMENTARY INFORMATION section of the interim rule.

In the proposed regulatory text contained in the NPRM published in the Federal Register on January 2, 2008, section 149.2(b) clearly states that “with the exception of any break bulk cargo pursuant to section 149.4(b) of this part and foreign cargo remaining on board (FROB), CBP must receive the Importer Security filing no later than 24 hours before the cargo is laden aboard the vessel at the foreign port. For FROB, CBP must receive the Importer Security Filing prior to lading aboard the vessel at the foreign port.” This clearly includes IE and T&E shipments. In the interim final rule, in an effort to accommodate concerns of the trade regarding the time of transmission for certain data elements, namely, container stuffing location and consolidator (stuffer) name and address, § 149.2(b) was changed to distinguish between the data elements that must be filed 24 hours prior to lading and the two data elements that can be filed as early as possible, but not later than 24 hours prior to arrival in a United States port, i.e., container stuffing location and consolidator. When this change was made in the interim final rule, during the redrafting process, the timing requirement for filing the Importer Security Filing for IE and T&E shipments, i.e., 24 hours before the cargo is laden aboard the vessel at the foreign port, was inadvertently omitted from the regulatory text.

The SUPPLEMENTARY INFORMATION section of the interim final rule is consistent with CBP's intention regarding the timing requirements for filing the ISF for IE and T&E shipments. The timing requirements for ISFs are described in the SUPPLEMENTARY INFORMATION section of the interim rule on page 71733: “This interim final rule requires Importer Security Filing (ISF) Importers, as defined in these regulations, or their agents, to transmit an Importer Security Filing to CBP, for cargo other than foreign cargo remaining on board (FROB), no later than 24 hours before cargo is laden aboard a vessel destined to the United States. See the ‘Structured Review and Flexible Enforcement Period' section of this document for flexibilities related to timing for certain Importer Security Filing elements. Because FROB is frequently laden based on a last-minute decision by the carrier, the Importer Security Filing for FROB is required any time prior to lading.”

Although there is no specific discussion in the SUPPLEMENTARY INFORMATION section or elsewhere in the interim final rule about the timing requirements for transmitting ISF data elements for IE and T&E shipments, the above statement makes it clear that CBP intended that all ISF data elements would be required no later than 24 hours before cargo is laden aboard a vessel destined to the United States except for the data elements covered by the flexibilities for timing (container stuffing location and consolidator) ^[2] and for FROB.^[3]

Accordingly, this document corrects the inadvertent omission in the regulatory text by adding a new paragraph (b)(5) to § 149.2 to clarify, consistent with the NPRM and the preamble language of the IFR, that Importer Security Filings for shipments intended to be transported in-bond as IEs and T&Es must be transmitted no later than 24 hours before the cargo is laden aboard a vessel destined to the United States.

Other Corrections

This document also corrects CBP Responses to two comments to align the responses to the regulatory text. On page 71741, in response to a comment about the carrier's responsibilities regarding the transmission of container status messages (CSMs), CBP stated in pertinent part that “the carrier's obligation to transmit CSMs ends upon discharge of the cargo in the United States * * *.” This statement is incorrect. Paragraph (b) of the new § 4.7d lists the events that must be reported if the carrier creates or collects a CSM in its equipment tracking system. Each of the listed events applies when a container is destined to arrive within the limits of a port in the United States. Therefore, CSMs are only required for events that occur prior to first arrival of the goods at a United States port. Accordingly, this document modifies the response in the preamble text to clarify, consistent with the regulatory text, that CSMs are required for events that occur prior to first arrival of goods at a United States port.

On page 71753, in response to a comment about the obligation to amend the ISF, CBP stated that “for goods which will be unladen in the United States, the Importer Security Filing must be updated if there is a change before the goods enter the port of discharge”. This statement is inconsistent with the new § 149.2 which provides in pertinent part that: “the party who submitted the Importer Security Filing * * * must update the filing if, after the filing and before the goods enter the limits of a port in the United States, any of the information submitted changes or more accurate information becomes available.” Accordingly, this document modifies the response to clarify, consistent with the regulatory text, that the Importer Security Filing must be updated if there is a change before the goods enter the limits of the first port of arrival in the United States and to clarify that amendments to the ISF will be accepted at any time after the goods arrive in a port of the United States.

II. Corrections

In FR Doc. E8-27048 appearing on page 71730 in the Federal Register on Tuesday, November 25, 2008, the following corrections are made:

D. Public Comments: Container Status Messages [Corrected]

1. On page 71741, the first CBP Response in the second column, correct the CBP Response to read as follows:

“Vessel operating carriers are required to submit CSMs. If a carrier currently does not create or collect CSMs in an equipment tracking system, the carrier is not required to submit CSMs to CBP. If a carrier does create or collect CSMs, the carrier is obligated to transmit CSMs for events that occur prior to the first arrival of the cargo at a port in the United States. However, a carrier may transmit other CSMs in addition to those required by these regulations. By transmitting additional CSMs, the carrier authorizes CBP to access and use those data. In order to minimize the cost to carriers whose volume of business does not justify the creation of CSMs, CBP is declining to impose an obligation upon carriers to create or collect any CSM data pursuant to this rule.”

H. Public Comments: Update and Withdrawal of Importer Security Filing [Corrected]

2. On page 71753, the third CBP Response in the first column, correct the CBP Response to read as follows:

“The Importer Security Filing must be amended if there is a change before the goods enter the limits of a port in the United States. “Port” refers to the first port of arrival in the United States. However, amendments to the Importer Security Filing will be accepted at any time after the goods arrive in a port in the United States.”

List of Subjects in 19 CFR Part 149

• Arrival
• Declarations
• Customs duties and inspection
• Freight
• Importers
• Imports
• Merchandise
• Reporting and recordkeeping requirements
• Shipping
• Vessels

In addition, the Bureau of Customs and Border Protection makes the following correcting amendment to 19 CFR part 149:

PART 149—IMPORTER SECURITY FILING

1. The authority citation for part 149 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C. 943; 19 U.S.C. 66, 1624, 2071 note.

2. In § 149.2, a new paragraph (b)(5) is added to read as follows:

§ 149.2

Importer security filing—requirement, time of transmission, verification of information, update, withdrawal, compliance date.

* * * * *

(b) * * *

(5) The data elements required under § 149.3(b) of this part for shipments intended to be transported in-bond as an immediate exportation (IE) or transportation and exportation (T&E), no later than 24 hours before cargo is laden aboard the vessel at the foreign port.

* * * * *

Dated: July 8, 2009.

Jayson P. Ahern,

Acting Commissioner.

Footnotes

1.  As provided in § 149.2(b)(3), the ISF Importer must submit the container stuffing location and consolidator as early as possible and in any event no later than 24 hours prior to arrival in a U.S. port (or upon lading at the foreign port if that is later than 24 hours prior to arrival in a U.S. port). This flexibility regarding timing is explained on page 71734 of the interim final rule.

2.  Neither of these two data elements pertain to IE and T&E shipments. (Container stuffing location and consolidator are not required data elements for shipments of goods intended to be transported in-bond as an IE or T&E).

3.  Unlike FROB, IE and T&E shipments are not frequently laden based on a last-minute decision by the carrier so it is not necessary to exclude IE and T&E shipments from the 24 hours prior to lading requirement.