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© 2009 Transmodal Corporation 1 Overview of ISF Presented By Chris Peterson, Vice President Customs & Compliance
© 2009 Transmodal Corporation 2 Why ISF? 9/11- need to secure supply chain. Container Security Initiative (CSI)- push US borders outward. Targeting based on computer-analyzed risk assessment.
© 2009 Transmodal Corporation 3 Ship’s Manifests and AMS Cargo Declaration-Elements the last foreign port before the vessel departs for the United States; the carrier’s Standard Carrier Alpha Code (SCAC); the carrier-assigned voyage number; the date the vessel is scheduled to arrive at the first U.S. port in Customs territory; the numbers and quantities of the carrier’s bills of lading; the first foreign port where the carrier takes possession of the cargo destined for the United States; a precise description and weight of the cargo the shipper’s complete name and address (from all bills of lading); the consignee or owner’s complete name and address (from all bills of lading); the vessel name, country of documentation, and official vessel number; the foreign port where the cargo is laden on board; HAZMAT code, if applicable; container numbers; container seal numbers.
© 2009 Transmodal Corporation 4 24 Hour Rule Automated Manifest System- Data elements transmitted to Customs at least 24 hours prior to lading. Allows Customs to analyze, target, and examine high-risk shipments while still in foreign port. Customs realized they needed more information…
© 2009 Transmodal Corporation 5 What is ISF / “10+2” ? Enacted by the Safe Ports Act of 2006 and 19 CFR 149 Transmitted to Customs at least 24 hours prior to loading Data elements (importer responsibility) –manufacturer (or supplier) name and address; –seller name and address; –buyer name and address; –ship to name and address; –container stuffing location; –consolidator name & address; –importer of record number (importer number, SSN, or EIN); –consignee number (importer number, SSN, or EIN); –country of origin; – HTSUS number (the first six digits).
© 2009 Transmodal Corporation 6 Who can file? Who can file? Importer Customs Broker Anyone with capability of filing and having a proper power of attorney from the Importer.
© 2009 Transmodal Corporation 7 Bonds Basic Importation bond: Any new single entry bond and all continuous bonds must cover ISF violations. The provision also meant that importers with active continuous bonds would not necessarily have to maintain a separate bond for ISF purposes.
© 2009 Transmodal Corporation 8 Comparison of ISF to AMS (Automated Manifest System), AES (Automated Export System), and Entry AESEntryAMSISF PurposeSecurity & Statistics Admissibility & SecuritySecurity Duties & Statistics FilerExporter or Agent Importer or BrokerCarrier/NVOCCImporter or Agent PenaltyExporter or Carrier Importer of RecordCarrier/NVOCCImporter Filing MethodAES DirectABIAMSAMS/ABI Data ElementsShipper, Consignee,Shipper, Consignee,Shipper, C’neeShipper, Value, HTS, ManifestValue, HTS, Manifest,Port, Description,C’Nee, C/O, IORManifestManifest, C/O, IOR HTS TimingPrior to ExportPrior to GO24 hrs Prior to 24 hrs LoadingPrior to Loading
© 2009 Transmodal Corporation 9 Structured Enforcement Period Begin ISF filings on January 26, 2009 No penalty issued for shipments prior to January 26, 2010. Flexible data elements –Timing. Container Stuffing Location and Consolidator. As late as 24 hours prior to arrival in a U.S. port. –Interpretive flexibility: Manufacturer, Ship to Party, Country of Origin, and HTSUS. A range of acceptable responses provided base data was submitted 24 hours prior to loading. In the event it become known to the importer that a change was necessary, that data could and would have to be amended no less than 24 hours prior to arrival.
© 2009 Transmodal Corporation 10 Penalties $5,000 for each violation of 19 C.F.R. §113.62(j) (Basic Importation and Entry Bond Conditions) Five circumstances under which an assessment of Liquidated Damages would be issued. –Failure to file ISF –Filing a late ISF –Filing an inaccurate ISF –Submitting an inaccurate ISF update –Failing to withdraw an ISF filing, when required. Each filing carries a potential total penalty amount of $10,000 (late filing and inaccurate filing). Customs clarified that failures to file would be treated completely differently than late/inaccurate filings.
© 2009 Transmodal Corporation 11 Mitigation Allowed for late and inaccurate filings. First violation may be cancelled upon payment of an amount between $1,000 and $2,000 Subsequent violations may be mitigated to an amount not less than $2,500. No relief if it is determined that law enforcement goals were compromised by the violation.
© 2009 Transmodal Corporation 12 Mitigating Factors Evidence of progress in the implementation of the ISF requirement during the flexible enforcement period; Small number of violations compared to the number of shipments for which ISFs were required; Additional mitigation of up to 50% for Tier 2 and Tier 3 C-TPAT members; Demonstrated remedial action; Late filing due to carrier actions outside of the Importer’s control; Reasonable reliance on third party data where that data resulted in an inaccurate ISF.
© 2009 Transmodal Corporation 13 Aggravating Factors Lack of cooperation with Customs with regard to the case; Evidence of smuggling or attempt to introduce merchandise contrary to law; Multiple errors on one ISF; Rising error rate indicative of deteriorating ISF performance.
© 2009 Transmodal Corporation 14 Failure to File Customs “shall withhold release or transfer of the cargo until CBP receives the required ISF information and has had the opportunity to review the documentation and conduct any necessary examination.” Customs will force an ISF to be made and it will, of course, always be late. The late filing liquidated damages penalty would then be assessed against the importer of record. Otherwise, the cargo would never clear through Customs and would eventually be eligible for General Order. Customs also, at its option, has the right to limit the permit to unlade so as to not permit unlading of the merchandise for which no ISF has been filed. This appears to be a more severe security-based remedy that would probably subject the importer to contractual damages from the carrier.
© 2009 Transmodal Corporation 15 Compliance Issues Regarding ISF “Importer” is the party that causes the shipment to arrive into the United States. Unfortunately, Customs’ definition provides little guidance otherwise. Delivery-Duty Paid (DDP) basis. Without an Entry, there can be no penalty. As long as there is an Entry, there will be an Importer of Record and a surety. Lack of a filing. –Extrinsic evidence to determine who the “Importer” is. –Penalize the Importer of Record on the Entry. –Will Customs refer to the consignee in AMS for the penalty?
© 2009 Transmodal Corporation 16 Recommendations Regarding your Shippers –Tight leash on all DDP shipments. –Indemnity from shippers, especially when it is known that ISF was not filed. –If buying after shipment departure, be sure ISF already on file. –Educate suppliers as to ISF consequences. ISF Filers –ISF filer is qualified and competent. –Indemnity –Match AMS- coordinate ISF filer and freight forwarder –ISF Report Cards Internally –HTS, C/O, MFR accurate according to data available at time. –Implement your ISF procedures now if not done already. –C-TPAT participation.
© 2009 Transmodal Corporation 17 Thank You Should you have any questions please do not hesitate to contact us. Chris Peterson Chris.Peterson@transmodal.net 201-316-1633
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