Update on Next Phase of ISF Enforcement, Statute of Limitations, Etc.
During the August 4, 2010 meeting of the Departmental Advisory Committee on Commercial Operations of U.S. Customs and Border Protection and Related Homeland Security Functions (COAC) in Detroit, MI, a CBP official provided an update on various issues related to 10+2 and the Importer Security Filing.
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The official made the following points:
CBP is “Moving Toward” 3rd Quarter of ISF Enforcement
CBP is moving toward the third quarter of ISF enforcement. Liquidated damages claims will not be issued for a while, but when they are issued, they will come from CBP Headquarters. CBP continues to focus on the non-filing of ISFs. Another official added by phone that the third quarter of enforcement is expected in the coming months.
(CBP has previously stated that it would not be issuing any liquidated damages for ISF issues during the first quarter beginning January 26, 2010. CBP had also stated that when it moved into the second quarter, if CBP sees repeated incidents of no ISFs being filed and no response from the importer, CBP may issue a claim for liquidated damages. During the third and fourth quarters, CBP stated that it will take a much stronger enforcement approach, including the issuance of liquidated damages on a more regular basis.
In addition, CBP has stated that the field will initiate claims for ISF liquidated damages, but all claims will be processed through Headquarters for the first year or so until the ports have had time to adjust.)
CBP Expected to Maintain Current ISF “Statute of Limitations”
CBP’s Office of Regulations and Rulings has made a decision on COAC’s request to shorten the statute of limitations for ISF liquidated damages. Another CBP official contacted by phone stated that OR&R’s decision will “maintain the status quo.”
Pursuant to 28 USC 2415, the statute of limitations for ISF liquidated damages is six years from the date of the breach of the bond.” At its May 2010 meeting, COAC recommended that CBP shorten the ISF statute of limitations, arguing that since the ISF transaction is not an entry, it has no liquidation cycle and the ISF obligation should end when CBP releases the goods subject to an ISF. CBP expects to soon update its 10+2 frequently asked questions document in order to reflect OR&R’s position on the issue of ISF “statute of limitations.”
(See ITT’s Online Archives or 05/18/10 news, 10051833, for BP summary of COAC’s ISF recommendations from the May 2010 meeting.)
CBP Requesting Feedback on ABI Data Query on ISF BOL Types
CBP has implemented changes to the Cargo/Manifest Status Query (Application Identifier (IN) in order to improve the ability of ABI filers to determine the proper bill of lading type for ISFs. CBP is requesting feedback from filers on the query.
(According to a CSMS message, this change was implemented on July 21, 2010. See ITT’s Online Archives or 07/15/10 news, 10071525, for BP summary of this change.)
CBP Continues to be Concerned with Duplicate ISFs
Although CBP is pleased with the high ISF compliance levels, it remains concerned about duplicate ISFs. CBP noted that duplicate ISFs are a primary reason for rejects. CBP is optimistic that the new query (see above) will help alleviate some of the problems of duplicates.
CBP Continues to Work on ISF Data Warehouse
CBP continues to work on its ISF Data Warehouse. CBP previously stated that the data warehouse’s portal will allow importer, broker, surety, filer, and carrier access and there will be standardized downloadable reports, as well as some ad hoc reports.
(In the July 2010 version of its 10+2 FAQ, CBP stated that it is in the process of developing a data warehouse that will allow importers to create and extract reports from CBP; including the capability to obtain ISF transactional data. See ITT’s Online Archives or 07/16/10 news, 10071633, for BP summary.)
CBP Has Finished Programming for SME Portal
CBP has completed programming for an ISF portal for small and medium-size enterprises (SMEs). CBP notes that the SME Portal is in the process of being finalized.
CBP has previously stated that the use of this portal by the public will be very limited in scope. For qualified users, access will be limited to no more than two (2) ISF filings per day, with a maximum of twelve (12) per year. Another CBP official added by phone that the portal is not designed for agents such as brokers.
COAC Presents Recommendations for “Highly Compliant” ISF Filer Benefits
At the meeting, the ISF Subcommittee presented and the full COAC adopted recommendations to CBP of benefits for ISF highly compliant importers. CBP has since posted COAC’s recommendations on its Web site.
(See ITT’s Online Archives or 08/10/10 news, 10081015, for BP summary of COAC’s recommendations.)
BP Note
According to another CBP official reached by phone, there is no uniform scanning threshold for the ports for shipments with non-compliant, untimely, or missing ISFs. The official stated that the ports have the discretion to determine the extent to which such shipments will be subject to non-intrusive inspection (NII), based on the port’s capabilities, etc.