Background

U.S. Customs and Border Protection has issued the following guidance on the possible diversion of cargo vessels from ports of entry in the Carolinas, Virginia, and Maryland due to a hurricane approaching the East Coast.

Notification of Diversion. A vessel granted a permit to proceed from one port in the U.S. to another or a vessel cleared to a foreign port or place, while en route, may divert to a port in the U.S. other than the one specified in the permit to proceed during this emergency event. The owner or agent of the vessel must immediately give notice of the diversion to the port that granted the permit or clearance, identifying the new destination. The originating port should log the date and time notifications are received and advise the owner or agent of the vessel to note on the CBP Form 3171, provided to the alternative port, its request for diversion and the specific situation for the diversion. 

Every effort should be made to provide notice to the intended port of arrival prior to the vessel reaching the port for which it is being diverted. However, ports are encouraged to allow leniency for those vessels unable to submit timely notifications.

Disposition of Cargo. The master of the vessel must immediately report arrival upon arrival at the new destination and make entry within 48 hours. If necessary, the port director may grant permission to transship all cargo from one vessel to another under CBP supervision. 

A vessel may unlade cargo at an alternative POE if the director of that port issues a permit for unlading or as a result of an emergency existing at the port of original destination. Cargo unladen at an alternative port should be entered in the same manner as other imported cargo, treated as unclaimed and stored at the risk and expense of its owner, or re-laden upon the same vessel without entry for transportation to its original destination.

Port directors will make case-by-case determinations on the carriers that will be allowed to discharge cargo based on the following criteria.

- The carrier transmitted cargo information to CBP via the Automated Commercial Environment reflecting the actual U.S. port of unlading.

- CBP officers have had the opportunity to screen the cargo and none of the shipments are determined to be of such high risk that discharge would not be authorized.

- The request for diversion was submitted electronically or telephonically to the original port of unlading and via a CBP Form 3171 to the alternative port of unlading and has been approved by the port director.

After entry the cargo declaration, CBP Form 1302, must be amended to reflect the alternate port of unlading.

ACE Cargo Release. The following procedures should be provided for ACE Cargo Release.

If a POE is provided on the entry by the filer: (1) the filer may update the initially submitted POE on the entry or remove it if the bill of lading has not yet been arrived; (2) if the filer does not update the POE and the original bill destined for Port A truly arrives at Port B, the POE will not automatically update on the entry to Port B based on the manifest/conveyance arrival message received and the filer must make the POE update before the release can occur for Port B (presuming the carrier made a bill of lading update to Port B); and (3) CBP users have the ability to update the existing POE on an entry so long as the user has the new port in its profile as an authorized port. 

If a POE is not provided on the entry by the filer: (1) the filer will not need to update the POE since it will have been derived automatically from the bill/conveyance arrival message; and (2) if the original bill destined for Port A truly arrives at Port B, the POE will automatically update on the entry to Port B based on the manifest/conveyance arrival message received (presuming the carrier will submit a BOL update to Port B).

Enforcement. All elements of the Trade Act will be enforced and cargo shipments that do not meet Trade Act requirements may be subject to CBP enforcement actions. All other laws and regulations enforced by CBP, including importer security filing, will be applicable to these shipments and the transporting conveyances; however, ports should not initiate penalty action against vessels diverted due to weather conditions.

All diverted cargo is subject to normal CBP processes, including targeting, enforcement examination, and large-scale non-intrusive inspection at the actual port of discharge. For cargo that would have been subject to a “DO NOT LOAD” order had the information been transmitted 24 hours prior to lading in the foreign port, CBP may deny permission for the carrier to unlade the cargo. Under no circumstances will unscreened cargo be discharged in the U.S.

Copyright © 2020 Sandler, Travis & Rosenberg, P.A.; WorldTrade Interactive, Inc. All rights reserved.

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