Importer Security Filing and Additional Carrier Requirements; Data Elements; 19 CFR Part 149

HQ H046828 March 9, 2009 CATEGORY: Carriers VES-5-RR:BSTC:CCI HQ H046828 CK Mr. James C. Tuttle Law Offices of James C. Tuttle 82 Wall Street Suite 1105 New York, NY 10005 RE: Importer Security Filing and Additional Carrier Requirements; Data Elements; 19 CFR Part 149 Dear Mr. Tuttle: This letter is in response to your correspondence dated December 1, 2008, in which you request a ruling on whether a proposed d/b/a trade-name practice and/or importer of record number can be used to satisfy certain data elements set forth in the new U.S. Customs and Border Protection (CBP) Interim Final Rule entitled “Importer Security Filing and Additional Carrier Requirements.” You request confidential treatment of certain information that you maintain would damage your client’s competitive position if released. We grant your request and redact the confidential information that you have identified in your ruling request by the use of brackets. Our ruling follows. FACTS: You state that your client [ ] proposes to utilize an imports divisional trade-name such as “XYZ Imports” [ ] in and on the face of its overseas purchase orders, invoices, bills of lading, and related overseas business course documents. The ‘XYZ Imports” trade-name and address would be provided for the “Buyer” data element as required by the new CBP Interim Final Rule entitled “Importer Security Filing and Additional Carrier Requirements.” Alternatively, you state that your client would like the option of providing its importer of record number for this data element, in addition to reporting it as required for the “Importer of Record” data element. Furthermore, your client will also be reporting its importer of record number for the “Consignee number” data element. Your client intends to report its currently used name and its new d/b/a trade-name, as well as its current importer of record number, on all entry documents. ISSUES: May the d/b/a trade-name be reported for the “Buyer” data element of 19 CFR 149.3(a)(2)? May the importer of record number be reported for the “Buyer” data element of 19 CFR 149.3(a)(2)? If the proposed d/b/a trade-name practice is allowed is an amendment of the basic continuous importation and entry bond (19 CFR 113.62) required? LAW AND ANALYSIS: To help prevent terrorist weapons from being transported to the United States, vessel carriers bringing cargo to the United States are required to transmit certain information to Customs and Border Protection (CBP) about the cargo they are transporting prior to lading that cargo at foreign ports of entry. Section 203 of the Security and Accountability for Every Port Act of 2006 (Pub. L. 109–347, 120 Stat. 1884 (SAFE Port Act)) provides that the Secretary of Homeland Security (Secretary), acting through the Commissioner of CBP, shall promulgate regulations to ‘‘require the electronic transmission to the Department [of Homeland Security] of additional data elements for improved high-risk targeting, including appropriate security elements of entry data, as determined by the Secretary, to be provided as advanced information with respect to cargo destined for importation into the United States prior to loading of such cargo on vessels at foreign seaports.’’ Pursuant to this Act, and section 343(a) of the Trade Act of 2002 (19 U.S.C. 2071 note), CBP published a Notice of Proposed Rule Making (NPRM) in the Federal Register (73 FR 90) on January 2, 2008, proposing to require importers and carriers to submit additional information pertaining to cargo before the cargo is brought into the United States by vessel. The proposed rule was known to the trade as both the ‘‘Importer Security Filing proposal’’ and the ‘‘10 + 2 proposal.’’ The name ‘‘10 + 2’’ is shorthand for the number of advance data elements CBP was proposing to collect. Subsequent to the analysis of the comments received in response to the NPRM, an Interim Final Rule entitled “Importer Security Filing and Additional Carrier Requirements” was published as CBP Dec. 08-46 in the Federal Register on November 25, 2008 (73 FR 71730). The Interim Final Rule was effective on January 26, 2009, and includes, inter alia, new regulations set forth in 19 CFR Part 149 entitled, “Importer Security Filing.” The Interim Final Rule requires Importer Security Filing (ISF) Importers, as defined in 19 CFR 149.1(a), or their authorized agents pursuant to 19 CFR 149.5(a), to transmit an ISF to CBP, for cargo other than foreign cargo remaining on board (FROB), no later than 24 hours before it is laden aboard a vessel at a foreign port and such vessel is destined to the United States. (19 CFR 149.2) ISF Importers, or their agents, must submit 10 elements to CBP for shipments consisting of goods intended to be entered into the United States and goods intended to be delivered to a foreign trade zone. The 10 elements set forth in 19 CFR 149.3 are as follows: (1) Seller; (2) Buyer; (3) Importer of record number/Foreign trade zone applicant identification number; (4) Consignee number(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). With specific regard to your client’s proposal, we note the following. Section 149.3(a)(2), CBP Regulations (19 CFR 149.3(a)(2)) defines “Buyer” as,  (2) Buyer. Name and address of the last known entity to whom the goods are sold or agreed to be sold. If the goods are to be imported otherwise than in pursuance of a purchase, the name and address of the owner of the goods must be provided. A widely recognized commercially accepted identification number for this party may be provided in lieu of the name and address. Pursuant to the above definition, your client’s proposed d/b/a trade-name and address would suffice for purposes of the ISF. It is entirely a commercial decision as to whether a d/b/a trade-name is adopted by your client and will be used on purchase orders, invoices, bills of lading and other business documents. Furthermore, while it is necessary to inform CBP of changes to your client’s name, whether your client decides to amend its “importer of record” number with CBP to account for this name change, or decides to file for a new importer of record number pursuant to 19 CFR 24.5, is also a commercial decision. As to whether your client may use its importer of record number for the “Buyer” data element, the above definition restricts this element to the name and address of the appropriate entity or a widely recognized commercially accepted identification number. In this case, the importer of record number is for CBP purposes a “widely recognized commercially accepted identification number,” as it is assigned by CBP and CBP maintains within its own systems the name and address of the party assigned that importer of record number. Consequently, its use will suffice for purposes of 19 CFR 149.3(a)(2). However, as a caveat, the importer of record number used must be for the “last known entity to whom the goods are sold or agreed to be sold.” In other words the importer of record number submitted as the “Buyer” data element for the ISF must correspond to the party that meets the definition of that term in the regulation. A corporate importer of record number that is not actually the “last known entity to whom the goods are sold or agreed to be sold” must not be submitted for the data element. Additionally, we agree that an importer of record number can be reported for the consignee number data element set forth in 19 CFR 149.3(a)(4) if that party is in fact the consignee. The third issue for our consideration is whether your client is required to file an amendment to its basic continuous importation and entry bond under 19 CFR 113.62, in view of our position discussed above. A bond rider amending the basic continuous importation and entry bond is unnecessary so long as entry will always be made by [ ] and they will always use their importer of record number. HOLDINGS: The “d/b/a” trade-name may be reported for the “Buyer” data element of 19 CFR 149.3(a)(2). The importer of record number may be reported for the “Buyer” data element of 19 CFR 149.3(a)(2), as long as that number is for the “last known entity to whom the goods are sold or agreed to be sold.” Additionally, an importer of record number can be reported as the consignee number data element pursuant to 19 CFR 149.3(a)(4) if that party is in fact the consignee. A bond rider amending the basic continuous importation and entry bond is unnecessary so long as entry will always be made by [ ] and they will always use their importer of record number. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers, & Immigration Branch