CBP Updates its 10+2 FAQ (Review Period, Progress Reports, Amendments)

This is Part II of a multi-part series of summaries detailing CBP's updated FAQ document and highlights new information regarding the structured review and flexible enforcement period, progress reports, and amendments. See future issues of ITT for additional summaries of the FAQ.

Structured Review Period

The updated FAQ has added information on the structured review and flexible enforcement period that lasts until January 26, 2010 (unchanged information is italicized).

Retention of documents as evidence of progress. In response to a question about how an importer demonstrates to CBP that they are making 'satisfactory progress towards compliance', CBP stated that it will consider the totality of the circumstances, on a case-by-case basis, when making this determination. ISF Importers should retain documentation demonstrating the steps that were taken during the structured review and flexible enforcement period.

Progress Reports

The updated FAQ has added a new section on ISF progress reports (report cards). Highlights of this new information is as follows:

Tier 3 gets report from CBP, others from filer. In response to a question on whether ISF Importers will be able to register and obtain a copy of their ISF Progress Report, CBP stated that it currently allows Tier 3 C-TPAT members the opportunity to register with CBP to receive their ISF Progress Reports directly from CBP. All other ISF importers must obtain a copy of their ISF Progress Report from their authorized ISF Filer.

(To obtain an ISF Progress Report, ISF Filers must register via the following email address: progress_report@cbp.dhs.gov. See FAQ for information necessary for registration.)

"Late" ISFs may be timely. CBP answered a question on CBP's measurement of timeliness by stating that the timeliness section of the ISF Progress Report is based upon the 1st bill of lading file date and does not necessarily mean that a "late" ISF, as it appears on the report, is actually untimely.

1st bill date only potential indicator. CBP understands that in many cases the carrier or NVOCC will submit the customs manifest data several days before it is legally required, which could make a timely ISF appear to be untimely when compared to the bill of lading filing date. The 1st bill of lading file date is merely a potential indicator of timeliness.

Departure date minus 24 hours to be another. In the near future, CBP states it will also utilize the vessel departure date minus 24 hours as a secondary potential indicator of ISF timeliness.

Exempt break bulk. If a carrier has received an exemption to the 24 Hour Manifest Rule for the timing provision of the manifest data for certain cargo shipments, i.e., "exempt" break bulk, the ISF is not required until 24 hours prior to vessel arrival into the United States. At this time, CBP is not specifically measuring the timeliness of these "exempt" break bulk shipments.

ISF Amendments

The updated FAQ has added some new information on ISF amendments (unchanged information is italicized).

Any agent/no agent to amend ISF. In answer to a question on how will importers without access to the Importer Security Filing elements in CBP systems amend a security filing, CBP answered that there is no query functionality in ABI or AMS regarding the security filing data. Access to the Importer Security Filing elements in CBP systems is not required to make an amendment to the ISF. If the ISF Importer used an agent to perform the filing, the ISF Importer should contact its agent for assistance in amending the ISF. However, an ISF Importer is not required to use the same agent (or any agent) to update an ISF.

Shipments sold in transit. CBP answered a question on how to handle shipments sold on the water, by stating that the ISF will need to be updated if the shipment is sold in transit. At a minimum, the ISF Importer must notify CBP that the goods have been sold, and the party must update the Buyer (Owner) field and any other field that the party knows has changed as a result of the sale. The ISF Importer remains liable for the timing and accuracy of the ISF filing.

CBP to issue amendment codes. CBP agreed with comment that it should create detailed amendment codes so changes to the ISF can be tracked more easily, and will post a list of amendment codes in the next set of implementation guides.

Update required for options FR or FT. One questioner asked that if he uses the "flexible filing option" and submits his ISF under action reason code FR or FT, will I be required to update my ISF filing?

Yes. If the ISF Importer elects to use the flexibilities provided for under the interim final rule by selecting the "FR" or "FT" code when submitting the initial ISF, the ISF must be updated with the correct or more accurate information as soon as it is known, but no later than 24 hours prior to arrival of the vessel in the first US port.

Action reason codes. CBP also states that one of the following action reason codes must be provided as part of an ISF-10 filing:

CT.- Compliant Transaction. All data is present, no special flexibility rules apply. The ISF can be updated if necessary. If "CT" is used, CBP does not necessarily expect to see an update.

FR - Flexible Range. A range of data for SF30 has been provided, the ISF must be updated at a later date as soon as better information becomes available, but in no case later than 24 hours prior to arrival. If "FR" is used, CBP expects to receive a timely update.

FT - Flexible Timing. The CS (Consolidator) and or LG (Stuffing location) has not been provided and must be provided in an updated transaction no later than 24 hours prior to arrival. This code may be used if using a combination of both the Flexible Range and Flexible Timing. If "FT" is used, CBP expects to receive a timely update.

FX - Flexible Range and Flexible Timing. A range of data for SF30 has been provided and the CS (Consolidator) and or LG (Stuffing location) has not been provided. The ISF must be updated at a later date as soon as better information becomes available, but in no case later than 24 hours prior to arrival. If "FX" is used, CBP expects to receive a timely update.

(CBP again states that the bill of lading number on the ISF can be amended. From a transactional standpoint, the system will allow an ISF Filer to update an existing ISF with a new bill of lading number. However, the ISF Importer is ultimately responsible for the timely, accurate, and complete submission of the Importer Security Filing.)

FAQ Non-Binding, Ruling Requests May be Submitted

CBP notes that its responses to the FAQs are for informational purposes only and are non-binding. Questions relating to specific facts and circumstances of a prospective transaction can be the subject of a ruling request under 19 CFR Part 177. Additional questions that are not included in this document can be sent to Security_Filing_General@cbp.dhs.gov. CBP notes that it will be continually updating and clarifying its FAQ document as necessary.

(See ITT's Online Archives or 10/05/09 news, 09100505, for Part I, which covered bill of lading numbers and bonds.

See ITT's Online Archives or 08/20/09 news, 09082005, for BP summary of CBP officials discussion of ISF bonds, etc.

See ITT's Online Archives or 03/10/09 news, 09031015, for BP summary of CBP's previous 10+2 FAQ, with links to previous parts.

See ITT's Online Archives or 12/23/08 news, 08122310, for the final part of BP's summary on the details of CBP's 10+2 interim final rule, with links to previous parts.)

CBP's 10+2 FAQs (updated 09/30/09) available at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/carriers/security_filing/10_2faq.ctt/10_2faq.doc