By: Bruce Leeds, Senior Counsel, Braumiller Law Group
CBP Form 5106 is used to identify the importer of record to U.S. Customs & Border Protection (CBP). It is typically used by surety agents when filing a bond, customs brokers for a new client. or importers to establish or change their number or address. If an importer does not have an employer’s identification number (EIN). or Social Security number, the form is used to assign a number. It is also used to establish and record a 2-digit suffix to the EIN number to separately identify business units and unincorporated divisions of a corporation.
Section 114 of the Trade Facilitation and Trade Enforcement Act (TFTEA) called for CBP to establish a new importer of record (IoR) program. This requirement arose in large part from scandals and difficulties associated with IoRs. Some companies had their identities stolen and dishonest importers circumvented Antidumping duties and other requirements. Time to tighten things up.
Among other things, the TFTEA required Homeland Security to “establish an importer of record program to assign and maintain importer of record numbers.” Section 114 went on to require that Homeland Security “develops criteria that importers must meet in order to obtain an importer of record number, including:
A. criteria to ensure sufficient information is collected to allow CBP to verify the existence of the importer requesting the importer of record number;
B. criteria to ensure sufficient information is collected to allow CBP to identify linkages or other affiliations between importers that are requesting or have been assigned importer of record numbers; and
C. criteria to ensure sufficient information is collected to allow CBP to identify changes in address and corporate structure of importers”
This led to a new version of CBP Form 5106. The path to implementation was not an easy one. Various trade associations and the National Customs Brokers and Forwarders Association had issues with the proposed form, so as a result, it went through several iterations. Finally, it was announced that the new CBP Form 5106 would be implemented in ACE on March 16, 2019.
The Information Notice for the new 5106 stated that it could be filed electronically in ACE, via EDI, or in hard copy. The revised form is now called the Create/Update Importer Identity Form, and it has 2 new mandatory data elements. These are an email address for the IoR, the type of address for its mailing address and, if applicable, its physical location address.
The new form is much longer than the old 5106 and has many more spaces that can be completed. However, many of these spaces are optional. These include the following:
- Estimated entries per year;
- How the IOR will be used (Importer, Consignee, etc.);
- Trusted Trader program codes;
- Fax number;
- Business Description
- North American Industry Classification System (NAICS) code;
- Dun & Bradstreet Number (D-U-N-S);
- Filer Code;
- Year established;
- Related business entities Employer Identification Numbers (EINs);
- Banking information;
- Certificate or articles of incorporation information; and
- Information for up to four beneficial owners and/or company officers
Why would anyone want to provide this additional information? There may be some good reasons:
- To help prevent importer identity theft – a nefarious party wanting to usurp an importer’s EIN number for illegal activities may not have access to the additional data elements
- If the IoR is a new entity and requires a CBP-assigned number
- If a company is in the Trusted Trader program that information is required
- If a company is a self-filer its filer code may be necessary
We suppose it is also possible that CBP could require an importer to complete the optional spaces, based on circumstances.
Importers who already have CBP Form 5106 on file are “grandfathered” into the system and do not need to use the new form until corporation or business changes require it to do so. In spite of this importers may want to prepare and file the new Form 5106. The compliance function of the IoR should make certain their exact mailing address (including building and mail station) are registered with CBP so that any hard copy documents, bills and refunds are sent to the right office instead of wandering around the company from desk to desk looking for a home. The IoR may want to track the import activity of separate business units, or a newly established or acquired division, by giving them a unique 2-character suffix, and the Form 5106 is the means to do so.
The revised CBP Form 5106 is not nearly as onerous as it first appeared to be. By working with the trade it is possible to revise the form to make it useful for all parties.