CBP Issues FAQ on its Draft Proposal to Require Additional Advance Data Elements for Maritime Cargo (10+2)

CBP states that it is developing a Notice of Proposed Rulemaking (NPRM), which will be published in the Federal Register along with a request for comments on the NPRM. According to CBP, it hopes that this FAQ document will assist the trade community in understanding the expectations of CBP concerning the proposed SF requirements.

CBP's FAQ document consists of 12 FAQs, which are "highlighted" below:

Who can file the 10 importer elements of the SF? CBP states that under its current thinking, the importer would be responsible for filing the complete, accurate, and timely importer elements of the SF. CBP adds that the importer would be able to designate an approved agent to submit the 10 elements.

Will CBP implement SF immediately? No. CBP explains that it is planning to go through the normal NPRM process. CBP adds that this will include a notice and comment period. After the Final Rule is published, CBP is planning to implement the SF via a 9-12 month phase-in period.

During the phase-in period, CBP will work closely with members of the trade to ensure that the SF is being filed correctly. Any identified issues will be handled through the well-established informed compliance program.

What about the general confidentiality issue for shippers that don't want importers to know the supplier (manufacturer) and importers don't want the seller to know who their customers are (ultimate consignee)? CBP states that it expects that supply chain partners to coordinate their business processes to accomplish a complete, accurate and timely SF. CBP states that it acknowledges the challenges of certain commercial business transactions and understands that the SF may be accomplished by multiple filers to preserve certain communications between the entities and to protect the confidentiality of said commercial information.

Can "supplier" be used for "manufacturer", where the manufacturer is not known, despite a good faith effort to identify the manufacturer. Yes. CBP states that it expects that supplier would be used only in those cases where a good faith effort to identify the manufacturer has not been successful.

Will SF be required for all transportation modes? CBP states that the current proposal for the SF is focused on ocean cargo. However, CBP plans to expand the concept to other modes in the near future and will continue to work with the trade on this issue.

Will CBP accept the SF message though both the Automated Manifest System (AMS) as well as the Automated Broker Interface (ABI)? Yes. CBP explains that it is planning to program both ABI and AMS to accept the 10 additional data elements of the SF.

When data changes after vessel sailing, does the SF need to be amended? Yes. CBP states that under its current thinking, the SF would need to be amended and this is expected to occur in the normal course of business.

Bulk and break bulk cargo are treated differently under the 24-hour Manifest Rule than standard containerized cargo. Will bulk and break bulk cargo be given the same consideration for the SF? Yes. For SF purposes, CBP states that it expects to model the treatment of bulk and approved break bulk cargo as per the Vessel FAQ under the Trade Act of 2002. (Vessel FAQ available at http://www.customs.gov/linkhandler/cgov/import/communications_to_trade/advance_info/vessel_faq.ctt/vessel_faq.doc)

How should multiple country-of-origin, HTS numbers and manufacturers in one shipment be shown in the SF? CBP states that it expects the process for reporting multiple countries-of-origin, multiple HTS numbers and multiple manufacturers in one shipment to mirror the CBP Form 3461 entry filing process. CBP adds that these three elements would need to be linked on the SF.

For a Commodity 6-digit HTS number, would a 10-digit code number be acceptable? Yes. CBP states that it encourages the provision of more data earlier and has no intention to hold the trade accountable for compliance purposes when a 10-digit HTS number is provided on the SF.

For "no sale" transactions, can the owner of the goods be used in lieu of the seller and buyer on the SF? Yes. CBP states that it expects the filer of the SF to list the owner of the goods in those cases where there is no buyer or seller of the goods. For example, the owner of the goods would be listed for personal effects, household goods and "to-order" shipments.

What about legal confidentiality issues? CBP states that SF data is designated as law enforcement sensitive when received by CBP because it is used for national security targeting purposes. It may be considered confidential commercial information when providing the same or similar information as required on the CBP 3461 Entry Form; therefore, CBP maintains that this information is exempt from disclosure under the Freedom of Information Act (FOIA). Confidential commercial information is prohibited from disclosure pursuant to the Trade Secrets Act (18 USC 1905) and cargo data provided in excess of the information required by 19 USC 1431 (c) is not required to be publicly disclosed.

¹ This draft proposal has also been referred to as a strawman proposal and a white paper.

(In late 2006, CBP issued a draft proposal in order to facilitate its development of regulations to collect the SF. CBP recently extended its deadline for comments on the draft proposal to February 14, 2007.

See ITT's Online Archives or 12/13/06 news, 06121305, for BP summary of the draft proposal. See ITT's Online Archives or 01/08/07 news, 07010805, for BP summary on the original comment request for this draft proposal. See ITT's Online Archives or 02/06/07 news, 07020605, for BP summary of comment period deadline extension. See ITT's Online Archives or 12/21/06 news, 06122199 1, for BP summary stating that the SF may be to be submitted as early as September 2007.)

CBP Security Filing FAQ (dated 02/08/07) available at http://www.cbp.gov/xp/cgov/import/carriers/security_filing_faq.xml