Importer Security Filing (10 + 2) Interim Final Rule: Compliance Period and Data Flexibility

(GHY International)

On November 25, 2008, U.S. Customs and Border Protection (Customs, CBP) published in the Federal Register an interim final rule regarding its Importer Security Filing and Additional Carrier Requirements program, commonly known as Importer Security Filing (ISF) or “10 + 2”. The rule requires importers and vessel carriers to electronically submit additional data items about imported cargo to Customs other than data currently submitted when making entry or manifesting ocean cargo destined for the U.S.

The interim final rule reflects certain changes from the proposed rule published in the Federal Register on January 2, 2008 which outlined the new additional data requirements, and explained other regulations related to the ISF program. One of the changes in the current rule deals with a one-year compliance period beginning on the effective date of the final rule. During this period, Customs says it will “show restraint in enforcing the rule.” Customs added that during this time importers must be found making “satisfactory progress toward compliance” and “a good faith effort to comply with the rule to the extent of their current ability.”

Customs is also allowing some flexibility in reporting certain data elements. Two of those data elements – the container stuffing location and the consolidator (stuffer) – are treated with timing flexibility and those elements may be reported at any time, as long as it is not later than 24 hours prior to arrival in a U.S. port. This differs slightly from the general rule which states that security filing data must be submitted to Customs no later than 24 hours before cargo loading at the foreign port of lading.

Customs also allows some flexibility in interpreting the range of acceptable responses for four elements in the ISF transmission. These four elements are the manufacturer (supplier), ship-to party, country of origin, and harmonized tariff (HTS) number. Imprecise submissions for these data elements submitted at the time of the ISF filing will be considered valid, depending on facts available to importers at the time, and pending further clarifying information. In the Federal Register notice, Customs gives examples of acceptable responses under this scenario. Customs also notes that there is no special timing flexibility with respect to reporting these four data elements.

Customs is accepting comments on or before June 1, 2009 related only to these six data elements for which Customs is providing some type of flexibility.

The effective date for the rule is January 26, 2009.

The full text of the interim final rule, including instructions on submitting comments, can be accessed online here or here (PDF form).