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January 25, 2009 

Importer Security Filing Regulation Scheduled to Take Effect Monday As Planned

The well-publicized memorandum from Chief of Staff Rahm Emanual to the heads of executive branch departments and agencies regarding review of pending regulations will be published in Monday's Federal Register. Among other things, the regulatory review memo suggested that agencies "consider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect." The memo also notes there are exceptions for national security and other significant circumstances.

The Office of Management and Budget issued a follow-up memo containing a number of factors agencies should use in determining whether to extend the implementation date of pending regulations, including whether the rulemaking process was procedurally adequate, whether the rule reflected proper consideration of all relevant facts, whether the rule reflected due consideration of the agency’s statutory or other legal obligations and several other factors.

Despite rumors to the contrary, neither U.S. Customs and Border Protection (CBP) nor the Bureau of Industry and Security have announced any plans to delay the implementation date of any pending regulations.

The most well known of CBP and BIS's pending regulations is CBP's Importer Security Filing and Additional Carrier Requirements regulation (commonly known as 10+2) that was published in the Federal Register (pdf) on November 25, 2008 and is scheduled to take effect tomorrow, January 26th. Therefore, it appears that the 10+2 regulation will go into effect tomorrow as planned.

However, as most importers are aware, the 10+2 regulation already contained a "structured review and flexible enforcement period" that will give the trade 12 months, or until January 26, 2010, to adjust to the new reporting requirements. Nevertheless, importers are still required to "make a good faith effort to comply with the rule to the extent of their current ability."

Given that regulatory and policy issues will be in a state of flux for the near term, importers and exporters should closely monitor announcements from CBP, BIS and other agencies governing the import and export of goods.

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