Last week, as reported in American Shipper, Texas-based University Furnishings agreed to pay $15 million to resolve a False Claims Act lawsuit for evasion of import duties. The United States alleged that University Furnishings knowingly classified dormitory bedroom furniture imported from China as office or other types of furniture not subject to duties. Interestingly, the suit originated as a whistleblower lawsuit, under that provision of the False Claims Act, by University Loft Co., a manufacturer of student furniture.
In follow up to our recent blog post on the new “ONE USG” message — that alerts ACE filers that an entry has been released by CBP and any applicable Partner Government Agencies (“PGA”) — US Customs has just recently published additional ACE cargo release message types that could apply when PGAs are holding part or all of a shipment.
- A “may proceed” message indicates that a particular PGA has determined that, for its purposes and based on the information provided through ACE, the merchandise may proceed into the commerce of the United States, possibly subject to certain PGA restrictions, e.g., to be shipped to an exempted outlet. When the admission of merchandise is determined by more than one PGA, that shipment will require a separate “may proceed” message from each PGA that regulates the merchandise before the merchandise may proceed into the commerce.
- Merchandise that has received a “may proceed” message from each PGA regulating the merchandise cannot proceed into the commerce until CBP releases the merchandise. Thus, before merchandise is released into the commerce, a CBP release and all required PGA “may proceed” messages must be received. Once CBP has released the merchandise and all required PGA “may proceed” messages have been received, a One USG message will be sent to the trade indicating the merchandise may be introduced into the commerce. Note, however, that even after the One USG message has been issued the merchandise is still subject to a Notice of Redelivery.
- A “partial refusal” message indicates that a particular PGA has determined that a portion of the merchandise may proceed into the commerce of the United States, and that the other portion may not proceed into the commerce.
- A “CBP Release” message indicates that CBP has determined that the merchandise may be released from CBP custody. All merchandise released by CBP is released conditionally, as it is subject to recall through the issuance of a Notice of Redelivery. Merchandise that is regulated by one or more PGAs may not proceed into the commerce until CBP releases the merchandise and all PGAs that regulate the merchandise have issued a may proceed message.
CBP Conditional Release
- A recognition that all merchandise that is released by CBP is released conditionally and is subject to recall through the issuance of a CBP Notice of Redelivery.
CBP Conditional Release Period
- The CBP “Conditional Release Period” is the 30-day period from the time of CBP release or the presentation of required samples, whichever is later. CBP may recall the shipment to CBP custody during the conditional release period. When the importer is directed to deliver a sample to CBP or a PGA, the conditional release period will not begin until the time the sample is received at the proper location. The 30-day period may be extended by the issuance of a FDA Notice of Action.
- A “Hold Intact” message indicates that a particular PGA has requested an examination of the merchandise. Hold intact is independent of a CBP Release message and may be issued by a PGA regardless of the CBP Release message. Merchandise subject to a Hold Intact message must be held intact, unaltered and complete and be sent to a designated location pending the PGA’s determination on whether the merchandise may proceed into the commerce of the United States. Merchandise that is not sent to the designated location may be subject to a CBP Notice of Redelivery. After the merchandise reaches the designated location the PGA will determine whether to issue a may proceed message, a partial refusal message, or a refusal message.
- A “One USG” message indicates that the merchandise has arrived, that all data required for entry has been submitted to the U.S. Government, that all PGAs that regulate the merchandise have issued a may proceed and that CBP has conditionally released the merchandise from its custody. This message is based on the data received from the trade and premised on that data being true, accurate and correct. A “One US” message is always sent, even if the merchandise is not regulated by any PGA.
- An “Under Review” message indicates that one or more PGAs are reviewing the applicable data to determine whether to issue a may proceed message or a Hold Intact message. An “Under Review” message has a direct bearing on a One USG message. A One USG message will not be issued until the review is completed and the merchandise is determined to be admissible into the commerce, i.e., may proceed. Any introduction of the merchandise into the commerce without a resolution of the under review by means of a may proceed message may result in a notice of redelivery, and/or enforcement action by CBP or a PGA. Merchandise subject to an under review message may be released by CBP if it not held for examination, presentation of required data, or held for PGA or other purposes.
- A “Rejected” message indicates that the entry has been rejected and returned to the filer for correction and/or the inclusion of required data and information.
- A “Refused” message indicates that CBP or a PGA have determined that merchandise may not be admitted into the commerce of the United States for consumption. In some cases, the merchandise will have to be destroyed or exported. In other cases, the merchandise may be moved in-bond or warehoused until the ultimate disposition.
- A “Documents Required” message indicates that CBP and/or a PGA is requesting the production of certain documents or data needed before a CBP Release or PGA may proceed decision can be made.
- An “Intensive Exam” message from CBP directs the merchandise to be delivered to a designated examination facility or site for actual physical examination. Merchandise so directed remains in CBP custody and may only be moved under bond. The CBP conditional release period will not begin until CBP releases the merchandise.
- A “Sample Required” message indicates that CBP and/or a PGA has directed that a sample of the merchandise be sent to a particular examination facility or laboratory site for inspection or examination. The CBP conditional release period will not begin until the sample is received at the proper location. Note that the conditional release period may be extended if FDA issues a Notice of Action.
Following is a brief overview of the December 10, 2015 webinar on the Food and Drug Administration (FDA) and ACE for Drugs, Devices and Biologics.
- All FDA filings must be processed through ACE beginning February 28, 2016 (in addition to NHTSA and APHIS (Lacey)).
- The process will be very similar to current state. CBP will check for syntax errors and reject the entry if missing or invalid data. Once it is accepted, FDA will use its PREDICT system to check for admissibility. However, filers will not receive their determination message until 5 days before ETA. Filers can make changes if more than 5 days prior to ETA.
- There was some discussion of upcoming policy changes that would allow a filer to revise a submission within the 5 day window. FDA is also considering requiring submission for FD0 flagged HTSs.
- FDA will continue to use the ITACS system for document collection/review until the DIS system has line-level functionality.
FDA/ACE Pilot Status
- To date, 1,000 entries subject to FDA requirements have been filed in the FDA ACE Pilot. FDA is still on-boarding new participants, and is working with filers and importers to ensure they understand what data is required by commodity. They can be found in the FDA Supplemental Guide, which breaks down the requirements by commodity.
- Four parties will always be required and possibly more depending on commodity:
||Manufacturer of goods
||FDA Import (Importer of Record)
||Delivered To Party
- Federal Establishment Identifier (FEI) numbers and Data Universal Numbering System (DUNS) numbers are encouraged in lieu of Name/Address and can expedite release.
- DUNS numbers can be found here.
- FEI numbers can be found here.
- To participate in pilot e-mail ACE_Support@fda.hhs.gov or call FDA’s Division of Import Operations at: 301-796-0356.
Per US Customs’ CSMS #15-000935:
The “New ACE Programming” CSMS group can be used by software developers currently testing in ACE certification to receive messages involving future programming, issues affecting transmissions in ACE Certification, and other issues with a focus on programming. Software developers [and anyone else looking for a heads-up] should access the CSMS web page and update their subscriber profile to include “New ACE Programming” group for receiving future messages sent to this trade group.
Helpful ACE guidance from our friends at the NCBFFA:
To help members working with the Partner Government Agencies (PGAs) navigate the new mandatory Automated Commercial Environment (ACE) environment, the NCBFAA has created a series of documents providing general technical guidance on what declaration information to report via ACE on behalf of these PGAs.
Three guides are currently posted:
Two more are pending approval: FDA Prior Notice, Eggs and one for the State Department. Another, currently in the works, involves medical devices. Because a number of additional ones are in development and production, the NCBFAA Task Force will continue providing new guides for posting on the NCBFAA Website as they become available.
Per US Customs’ CSMS 15-000889:
- Attention all export filers… the new AESDirect is available in the ACE Secure Data Portal for export filing.
- If you have ACE Exporter Account access, you can begin filing using the new system. If you have not yet obtained ACE Exporter Account access, please review the broadcast message covering ACE registration and exporter access at: http://content.govdelivery.com/accounts/USCENSUS/bulletins/1093877
- Today marks the beginning of the transition from the legacy AESDirect application to the Refactored AESDirect in ACE. During this transition period, both the legacy and the ACE AESDirect application are available for export filing. Take advantage of this time and begin transitioning your users to the new system. Please ensure proper transition management to avoid duplicate filing.