Monday Morning eBriefing

Last Friday, President Trump signed a short-term spending bill that will reopen the Federal Government through at least February 15. If a longer deal has not been worked out by February 15, President Trump said that "the government will either shut down again," or "I will use my powers to build a wall."

U.S. Customs and Border Protection (CBP) announced to the NCBFAA last Thursday that the enforcement of the changes to the in-bond regulations and the enforcement of ISF-5 fillings were being postponed due to the ongoing government shutdown. A CSMS message was released the following day, explaining the postponement in more detail.

Last week, the Americans for Free Trade Coalition, of which the NCBFAA is a member, welcomed the newly-elected and returning members of the 116th Congress with a letter urging them to consider the impact the trade war was having on their districts and states and reminding them of the power they have in trade policy matters.

Due to the ongoing Government shutdown, the NCBFAA will have to postpone our upcoming "The New Normal at the FMC" Summit. The event, which was scheduled to feature the Federal Maritime Commission's (FMC) Acting Chairman Michael Khouri and Commissioner Rebecca Dye, will be rescheduled after the reopening of the Federal Government. If you have registered for the event, we will be issuing you a full refund.

With a Federal government shutdown officially underway, the NCBFAA has reached out to representatives of Partner Government Agencies (PGA) for information regarding the arrangements they have in place for the processing of Import and Export cargo. Please see below for agency guidance and procedure.

The NCBFAA has relayed the issues our members are experiencing to U.S. Customs and Border Protection (CBP) in regard to their practice of voiding inactive importer numbers. CBP has acknowledged that their scope was a bit broad and have put a temporary halt to the process. They are currently reevaluating the process and may expand the period. CBP expects to relaunch the program at the beginning of the year with, perhaps, a broader period of 18-24 months. The NCBFAA Customs Committee has received many examples of the challenges experienced during the initial program. We would like to send examples of erroneous voiding, whether the program has too narrow a period, and suggestions to CBP for consideration, as they develop a revised program. If you have any examples or suggestions, please send them to Megan Montgomery and we will incorporate them into a submission to CBP.

In a tour de force of Congressional testifying, U.S. Customs and Border Protection (CBP) Commissioner Kevin McAleenan spoke at length and in great detail about border issues before the Senate Judiciary Committee last Tuesday.

Importers are required to file a certificate advising whether they have entered into an agreement or otherwise has received reimbursement of AD duties. If an importer fails to provide a statement of reimbursement prior to liquidation, CBP will presume reimbursement and double the duties. Blanket certificates for either a 12-month period or the length of the administrative review period are acceptable. An officer of the importer must sign the certificate; a customs broker cannot sign the certificate. The certificate should be filed prior to liquidation although certificates may be presented with a CBP protest to rebut the reimbursement presumption and cancel the doubling of the duties for the failure to submit the certificate.

In order to better serve our members during ACE outages, the NCBFAA has added "Port Downtime Procedures" to its website. Found under the "Publications and Resources" tab, the ACE Downtime Procedures page has lists of specific ports and their guidelines to help facilitate trade efficiently during computer system downtimes.

On November 14, President Trump announced he was appointing Daniel Maffei and Louis Sola as Federal Maritime Commission (FMC) Commissioners.

On November 14, President Trump announced he was appointing Daniel Maffei and Louis Sola as Federal Maritime Commission (FMC) Commissioners.

Announced via CSMS #18-000663, U.S. Customs and Border Protection (CBP) has released submission instruction guidance on the submission of imports excluded from duties on steel or aluminum products.

On October 30, President Trump issued Presidential Proclamation 9813, which implemented changes to the Generalized System of Preferences (GSP) by removing the eligibility of certain goods for preferential duty treatment and makes changes to Harmonized Tariff Schedule (HTS) classifications. This Proclamation went in to effect on November 1.

In a recent CSMS message (#49876589), the Food and Drug Administration (FDA) recommends that importers and customs brokers of FDA-regulated products utilize FDA’s Import Trade Auxiliary Communications System (ITACS) for current entry status and to receive FDA Notices electronically. The agency noted an ITACS account is not required to import FDA-regulated products. However, review of documents submitted via ITACS is prioritized over review of documents submitted to FDA via other methods.

Announced via CSMS #18-000631, U.S. Customs and Border Protection (CBP) has released the latest 5106 CBP and Trade Automated Interface Requirements (CATAIR) draft entitled "ACE Draft CATAIR: Importer/Consignee Create/Update." According to the CSMS, the new "5106 CATAIR will be available for testing in the CERTIFICATION environment starting in December 2018."

In a letter to former NCBFAA President Geoff Powell, the Food and Drug Administration (FDA) announced that it has now completed its procedure for revamping the Filer Review process. According to FDA, the new process is now in effect nationally and is the method that will be used for conducting all filer evaluations. Here is a copy of the procedure along with a flow chart of the process and a chart giving examples of how FDA will determine the severity of data transmission errors during a review.

Starting in 2010, a majority of the FMC Commissioners reinterpreted what is commonly referred to as Section 10(d)(1) of the Shipping Act, which is now codified at 46 U.S.C. §41102(c). This new interpretation raised significant potential issues for NVOCCs and ocean forwarders, as it made it significantly easier for shippers to sue intermediaries at the FMC in any situation where there was a commercial dispute. And so, for example, in cases even where shippers had not paid freight charges, they were nonetheless able to obtain judgments against NVOCCs and forwarders when faced with significant demurrage and detention claims that arose due to those unpaid charges. In each of these series of cases, now FMC Chairman Michael Khouri was in the minority and wrote extensive and repeated dissents explaining why this change of interpretation of Section 10(d)(1) was inappropriate.

On October 3, the Senate overwhelmingly passed legislation reauthorizing federal aviation programs through fiscal year 2023. The bill includes a provision establishing an air cargo security division within the TSA that will carry out all policy and engagement with stakeholders.

On September 22, 2018, Governor Jerry Brown signed into law a bill (SB-1402) that would make forwarders, customs and property brokers and shippers liable to pay any judgments that have been entered against drayage companies arising out of their indebtedness to drayage drivers for unpaid wages or expenses, inappropriate deductions, penalties for unpaid unemployment insurance or other judgments in favor of the drivers. Briefly, the bill applies to "customers" who use a "port drayage motor carrier" to provide "port drayage services" using a "commercial driver." Each of the terms in quotes is defined in the legislation, and would include a freight forwarder, property broker, customs broker or shipper. The law is set to take effect in January 2019.

In a letter to U.S. Customs and Border Protection (CBP) and the Treasury Department, the National Customs Brokers and Forwarders Association of America, Inc., (NCBFAA) provided detailed comments on the proposed regulations implementing the drawback amendments in the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA). While NCBFAA recognized the extensive work undertaken by CBP in developing the regulations, NCBFAA's Drawback Committee identified three key areas where its members believed the agencies' proposed regulations did not implement the intentions of Congress.