NVOCCs Shouldn't Be Included Within ISF Definition, NCBFAA Says

CBP is misguided in its proposal to add non-vessel operating common carriers to the definition of importer within the importer security filing (ISF) requirements (see 1607050028), the National Customs Brokers & Forwarders Association of America said in comments to the agency (here). CBP proposed adding importer status to different parties based on whether the shipment involves foreign cargo remaining on board (FROB) or other types of cargo in order to make sure the party with the access to detailed cargo information is responsible for filing an ISF. The NVOCC is "rarely, if ever," the party with best access to the required information, the trade association said.

An NVOCC typically has only "basic shipment manifest data," and relies on the shipper, owner, third-party vendor, seller, buyer or consignee to provide cargo information, the NCBFAA said. The NVOCC does sometimes have access to additional information about a shipment and can provide that information to the owner, purchaser, or consignee when it decides to, the group said. That doesn't mean that "all NVOCCs should automatically be responsible to be the ISF Importer just because FROB is involved."

CBP should allow individual NVOCCs that have access to the ISF information to opt to be an ISF importer, but not mandate it, the trade association said. "The Association urges that CBP reconsider its approach here and not require that NVOCCs automatically take on that capacity," it said. "If that regulation is amended as proposed, it is likely that the vessel operators will refuse to provide the necessary data element to CBP. This would leave NVOCCs, who often will not know that any vessel destined to a foreign destination will be calling a US port en route, unfairly exposed to liability."

The World Shipping Council offered several recommendation in its comments (here). The group asked CBP to confirm the WSC's understanding that the proposal places ISF-5 filing responsibilities that involve immediate exportation, transportation and exportation and foreign trade zone shipments on "the goods owner, purchaser, consignee or agent such as a licensed customs broker." The WSC said CBP should clarify whether it seeks to allow for the carrier or NVOCC to file ISF information for IE, T&E or FTZ shipments. Also unclear is the ISF-5 requirement for FROB cargo, it said. "Leaving the obligation for the ISF-5 with the 'carrier or the NVOCC' -- without indicating when the carrier is responsible for the ISF-5 and when the NVOCC is responsible for the ISF-5 -- does not improve the precision of the regulation with respect to which carrier is the responsible party for the FROB ISF-5 filing when an NVOCC is involved in the shipment," the shipping group said.

CBP should also exempt cargo on foreign-to-foreign vessels delivered to the U.S. due to weather or other unforeseen issues from the FROB ISF-5 filing requirements, the WSC said. "We believe such an approach is reasonable from a risk-management perspective because: 1) many of the cases in which foreign-to-foreign shipments could become U.S. FROB cargo due to a vessel diversion would likely involve shipments bound to Canada, 2) the Canadian Border Services Agency (CBSA) requires advance cargo information similar to what CBP requires, and 3) we understand that CBP has an information sharing agreement with CBSA through which CBP could be informed of or obtain information on high-risk shipments," it said.