Last month the United States Department of Homeland Security's (DHS) Customs and Border Protection (CBP) announced its long-awaited interim final rule on the Importer Security Filing and Additional Carrier Requirements, also known as the "10+2" rule.

CBP posted the interim final ruling to the Federal Register with updates to the customs rule known as "10+2" after significant modifications were made to a notice of a proposed rule published in January 2008.

Beginning next month, CBP will require 10 additional data elements from importers and two from carriers.

The 10+2 rule is so named because it requires importers to submit 10 types of information about what they are importing and requires two new types of information from shipping companies.

As originally written, the rule would have required U.S. manufacturers to submit the 10 new data elements 24 hours prior to loading a shipping container at a foreign port — even though the data are not available that early.

According to John Engler, president of the National Association of Manufacturers (NAM), which lobbied for changes to the rule, the original draft of the regulation "would have cost U.S manufacturers as much as $20 billion annually, created huge delays and missed shipments in the global supply chain, risked shutting down U.S production lines and actually worsened security by increasing the amount of time containers sat around available for tampering at foreign ports."

In addition to the existing carrier requirements pursuant to the 24-Hour Rule, the interim final rule now requires carriers to submit a vessel stow plan and container status messages under certain scenarios where cargo containers are destined for the U.S.

The rule also requires importers or their agents to submit an Importer Security Filing (ISF) with eight data elements, no later than 24 hours before the cargo is laden aboard a vessel destined for the U.S. They are:

• Seller name and address;

• Buyer name and address;

• Importer of record number;

• Consignee number(s);

• Manufacturer (or supplier) name and address;

• "Ship to" name and address;

• 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," according to the DHS fact sheet. "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 (stuffer name and address).

The 10+2 rule was "the most significant import industry security measure since the Sept. 11, 2001, terrorist attacks," the Washington Post recently quoted trade officials as having said.

As a result of challenges made against the original version of the rule, the OMB agreed to give importers flexibility in complying and delay some of its implementation and has thus published it as an interim rule rather than a final one as originally proposed.

The updated rule establishes an interim six-month test of how the data elements can be provided and allows U.S. manufacturers to provide the most difficult data elements on a "best available" status.

The CBP is inviting 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 marks the end of the information-gathering phase of the structured review.

Resources

Importer Security Filing and Additional Carrier Requirements; Final Rule
U.S. Customs and Border Protection, Nov. 25, 2008

Fact Sheet: New Cargo Security Requirements for Maritime Carriers and Importers
U.S. Dept. of Homeland Security, Nov. 24, 2008

NAM Welcomes Improvements in Potentially Costly Customs Rules
National Association of Manufacturers, Nov. 24, 2008

At the Last Minute, a Raft of Rules
by R. Jeffrey Smith and Juliet Eilperin
The Washington Post, Nov. 30, 2008