On Thursday, March 14, the Census Bureau published a final rule implementing changes to the Foreign Trade Regulations, 15 C.F.R. Part 30. The final rule includes long-awaited changes to the post-departure filing program commonly referred to as Option 4. In addition, Census made several important modifications to the proposed rules published in January 2011, several of which are outlined, below. In addition, the final rule makes remedial changes to the FTR to improve clarity and correct errors.

The changes implemented by the final rule are effective January 8, 2014, with certain limited exceptions. The full text of the final rule is available here in 78 Federal Register 16366.

Although a number of changes are included in the final rule, undoubtedly the most anticipated is the publication of the rule for post-departure filing based on comments from the trade and a review of post-departure data. The changes included in the final rule include a backing away from the proposed commodity-based approach that sought to limit post-departure filing to commodity types that were perishable or otherwise seen to rely on post-departure filing. As a result, all currently authorized post-departure filers will be able to continue to utilize their status, regardless of their commodity types. The window for post-departure filing will be shortened, however, from 10 calendar days to five. Census determined, based on a review of historical data, that most filers submit their data within five days post-departure, and therefore this was determined to be a reasonable timeframe. At the same time, Census and U.S. Customs and Border Protection have agreed, for the time being, to continue the current moratorium on new applicants for post-departure status in place since 2003.

Several other important (but not as high profile) changes have been made to the proposed regulations that were published in January 2011. These include:

  • Census removed the proposed requirement that the country of origin of exported goods be reported. Therefore, the current requirement, requiring the designation of goods only as “Domestic” or “Foreign,” will stand; and
  • Census determined that several fields that it proposed changing from optional to conditional represent data that may be unavailable or extremely difficult to obtain at the time of export, and so these fields are being retained as “optional” fields. For example, the seal number for a container will remain an optional field.