[Federal Register Volume 74, Number 246 (Thursday, December 24, 2009)]
[Rules and Regulations]
[Pages 68376-68377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30570]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
19 CFR Part 149
[Docket Number USCBP-2007-0077]
RIN 1651-AA70
Importer Security Filing and Additional Carrier Requirements;
Correction
AGENCY: Customs and Border Protection, Department of Homeland Security.
ACTION: Correcting amendments.
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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, which requires the submission of an Importer
Security Filing (ISF) for cargo arriving in the United States by vessel
and a bond to secure compliance with the ISF requirement, inadvertently
omitted the liability amounts for breach of the importer security
filing bond and neglected to make provision for using the importer
security filing bond to secure a single ISF transaction. This document
clarifies the bond terms applicable to the importer security filing
bond as set forth in an Appendix to the Customs and Border Protection
bond regulations by adding the liability amounts for a breach of the
bond and by adding a paragraph to cover a single transaction.
DATES: This amendment is effective on December 24, 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, (202) 344-2513.
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 ISF 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 rule was effective on January
26, 2009. On July 14, 2009, CBP published a correction to the interim
final rule in the Federal Register (74 FR 33920) that amended the
regulations by providing the time frame for transmitting an ISF for
shipments intended to be transported in-bond for immediate exportation
or for transportation and exportation. The document also corrected two
CBP Responses to comments in the preamble text to align them with the
regulatory text.
II. Clarification of the ISF Bond Terms
Under the rule, all ISF Importers must possess a bond as security
for the ISF requirement. Specifically, 19 CFR 149.5(b) provides that
the ISF Importer must possess a basic importation and entry bond
containing all the provisions of 19 CFR 113.62, a basic custodial bond
containing all the provisions of 19 CFR 113.63, an international
carrier bond containing all the provisions of 19 CFR 113.64, a foreign
trade zone operator bond containing all the provisions of 19 CFR
113.73, or an importer security filing bond as provided in Appendix D
of part 113 of 19 CFR. In light of this bond requirement, CBP amended
19 CFR 113.62, 113.63, 113.64, and 113.73, to provide that the
principal agrees to comply with ISF requirements and in the event of a
breach of the bond, agrees to pay liquidated damages in the amount of
$5,000 per violation. CBP also amended Part 113 by adding Appendix D,
titled ``Appendix D to Part 113--Importer Security Filing Bond'', which
lists the terms of the ISF bond. However, the liquidated damages
language contained in the Appendix D ISF bond does not expressly
provide for the payment of liquidated damages in the amount of $5,000
per violation. Instead, the Appendix D ISF bond contains broad language
that requires ISF Importers to pay any amount prescribed by law or
regulation upon demand by CBP for a violation of 19
[[Page 68377]]
CFR part 149. CBP is revising the Appendix D ISF bond language to add
the $5,000 liquidated damages clause contained in the other bond
provisions.
This amendment is consistent with the background portion of the
Supplementary Information to the interim final rule. In discussing the
changes made from the Notice of Proposed Rulemaking, CBP explained that
``[t]he liquidated damages amount for violations of the Importer
Security Filing requirements are changed from the value of the
merchandise, as proposed, to $5,000 for each violation in proposed
Sec. Sec. 113.62(j), 113.64(e), and 113.73(c) and new Sec. 113.63(g)
and Appendix D to part 113 (emphasis added).'' 73 FR 71736. The
inclusion of the $5,000 liquidated damages clause in the Appendix D ISF
bond will bring the Appendix D ISF bond language into conformity with
sections 113.62, 113.63, 113.64, and 113.73 and with CBP's stated
intention in the Supplementary Information section of the interim final
rule.
This document also clarifies the applicable time period for an
Appendix D ISF bond. The current Appendix D language states that the
bond is effective for one year beginning with the effective date and
for each succeeding annual period, or until terminated. The text is
being revised to make clear that the Appendix D ISF bond may also be
used to cover a single transaction. This clarification will facilitate
compliance with the ISF requirement by ISF Importers and is consistent
with the Supplementary Information portion of the interim final rule in
which CBP stated that it would accept single transaction bonds on a
case-by-case basis. 73 FR 71760. Despite this statement, the terms of
the Appendix D ISF bond did not make provision for using it as security
for a single transaction.
III. Inapplicability of Notice and Comment and Delayed Effective Date
Pursuant to 5 U.S.C. 553(b)(3)(B), CBP has determined that it would
be impracticable, unnecessary, and contrary to the public interest to
require notice and public procedure for these amendments as CBP is
simply clarifying the terms of the importer security filing bond in
Appendix D consistent with both the preamble of the interim final rule
and the other regulatory language in other bonds used to secure the
ISF. In addition, the amendment to add text to clarify that the
importer security filing bond can be used as either a continuous or
single transaction bond confers a benefit to ISF Importers and imposes
no burden on any interested parties. For these same reasons, pursuant
to 5 U.S.C. 553(d)(1) and (d)(3), there is good cause for these
amendments to not have a delayed effective date.
IV. The Regulatory Flexibility Act and Executive Order 12866
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do
not apply. Also, this amendment does not meet the criteria for a
``significant regulatory action'' as specified in Executive Order
12866.
V. Amendments
List of Subjects in 19 CFR Part 113
Common carrier, Customs duties and inspection, Freight, Penalties,
Reporting and recordkeeping requirements, Surety bonds.
Amendments to the Regulations
0
Part 113 of title 19, code of Federal Regulations (19 CFR part 113), is
amended as set forth below.
PART 113--CUSTOMS BONDS
0
1. The general authority citation for part 113 continues to read as
follows:
Authority: 19 U.S.C. 66, 1623, 1624.
0
2. Revise Appendix D to part 113 to read as follows:
Appendix D to Part 113--Importer Security Filing Bond
This appendix contains the relevant terms and conditions for
Importer Security Filing Bonds.
Importer Security Filing Bond
KNOW ALL MEN BY THESE PRESENTS, that ---------------------- of
----------------------------, as principal having Customs and Border
Protection (CBP) Identification Number ------------ and ------------
----, as surety are held and firmly bound unto the United States of
America up to the sum of ------------ dollars ($------------) for
the payment of which we bind ourselves, our heirs, executors,
administrators, successors, and assigns, jointly and severally,
firmly by these presents.
Whereas, the named principal (including the named principal's
employees, agents and contractors) agrees to comply with all
Importer Security Filing requirements set forth in 19 CFR part 149,
including but not limited to providing security filing information
to CBP in the manner and in the time period prescribed by
regulation.
If the principal defaults on the conditions of this obligation,
the principal and surety jointly and severally, agree to pay
liquidated damages of $5,000 for each violation, or such other
amount as may be authorized by law or regulation upon demand by CBP.
[Complete this paragraph only for a single transaction bond]
This single transaction bond secures the single transaction
identified by Importer Security Filing transaction number ----------
------------ issued by CBP on ------------, 20------------.
[Complete this paragraph only for a continuous bond]
This continuous bond is effective ------------, 20------------,
and remains in force for one year beginning with the effective date
and for each succeeding annual period, or until terminated. This
bond constitutes a separate bond for each period in the amount
listed above for liabilities that accrue in each period. The
intention to terminate this bond must be conveyed within the period
and manner prescribed in the CBP Regulations.
This bond is executed on ----------------, 20------------.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
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(Name) (Address)
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(Name) (Address)
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(Principal Name) (Seal)
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(Principal Address)
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(Surety Name) (Seal)
Surety No. --------
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(Surety Mailing Address)
Surety Agent Name------------------------------------------------------
Surety Agent ID Number-------------------------------------------------
Dated: December 18, 2009.
Jayson P. Ahern,
Acting Commissioner.
[FR Doc. E9-30570 Filed 12-23-09; 8:45 am]
BILLING CODE 9111-14-P