IRS Reverses FedEx Ground Ruling

In what appears to be the latest chapter in a series of long-awaited FedEx rulings on their independent contractor woes, the IRS announced that it has dropped the last audit of FedEx. At present, FedEx does not expect any more audits on the company for this matter.

The IRS ruled in late October that it will reverse its earlier stance and previous assessment that FedEx had misclassified some of its package delivery drivers as independent contractors. The reversal squarely backs the FedEx stance that its classification of certain drivers in the network as independent contractors is appropriate. Furthermore, the ruling drops a potential $319 million assessment by the IRS. FedEx broke the news in their SEC filing.

For the past three years, it has been common for us to hear UPS warn our clients during presentations about the status of FedEx independent contractors and to watch for a huge move by the federal government to push for the classification of these drivers to employees. That would open the door for potential  labor union representation and a more level playing field when it comes to how this part of FedEx's business is managed (UPS drivers and other parts of UPS are represented by the Teamsters). Now that appears to not be the case.

What we're seeing as we complete a record number of projects in 2009 and slated for 2010 is that FedEx has made aggressive moves to gain market share among dwindling and finite package volume. Most recently, FedEx announced the introduction of their SmartPost service; a low-priced ground residential delivery service that has significant cost savings in the 1-10 lb range. The delivery of SmartPost packages is handled by both FedEx and the US Postal Service.

At the same time and within the same climate, we're seeing backward moves by UPS. Although most pricing remains competitive, UPS is tendering odd documents with their new rounds of pricing; including loosely-worded early termination agreements. For nearly two decades, UPS has been overt in their education to the shipper that their pricing documents are "Carrier Agreements" (as worded clearly on the top of every document) and not a "contract". With the advent of early termination, one would construe that there must be a term...and with the statement of penalties for early termination, it would appear that these are now contracts.

The months of January and February are always interesting in our organization, as we're fielding calls and requests from clients and prospects for assistance with the rate increases that they knew were coming, but didn't know how they would affect their bottom line. This winter will also be an interesting time to watch the continued jockeying of the two remaining global service providers in this space.

IRS Drops Last FedEx Audit
IRS Reverses FedEx Ground Ruling

When Rates Caps Aren't Enough in 2010

The 2010 general rate increase will impact your business in more ways than one. Don't let 2010 be another year when the carriers raise your base rates well over 5% and also increase the surcharges that will ultimately drive up your overall cost of doing business. For example, the FedEx accessible dangerous goods surcharge will increase over 9% going from $65 to $70. Another example is the FedEx Express oversize charge increasing by 9% from $45 to $50 per package. We are all experiencing one of the most challenging economic environments in recent history and the road ahead is treacherous at best. PA & Associates is poised to take your carrier negotiations to a new level with a financial model that has produced an industry leading 42% average savings for our clients. Our value stems from over 18 years of logistics and financial expertise and a team of logistics professionals that deliver quantifiable results.

PA & Associates understands your desire to elevate your ROA (return on assets) and effectively streamline your supply chain. We provide solutions and deliver financial results. Call PA & Associates today at 1-866-200-SAVE to discuss your potential for savings!

website:www.paaa.com

Contributors: Steve Syverson, Clorisee Canada, Scott Guldin

Help! My Bus With The Right People On It Is Sinking In The Blue Ocean

Sorry to mix business self-help metaphors but I cannot stand empty slogans and war cries! It is a real chafe.

For example, many companies now espouse a “spend management” platform. Like so many hackneyed terms in business, spend management is now overhyped by those companies that are trying to use it as a sword but their services prove to be a meat cleaver instead. Let’s be clear; spend management is more than just cost reduction. Spend management is a philosophy, a practice, a discipline, and ongoing best practices management. And CFOs beware; there is a lot of “sizzle” but no “steak” with many of these service providers and consultants that purport to adhere to spend management principles. Spend management should be the manner in which companies control and optimize the money they spend. So, while cost reduction is the immediate impact, spend management presumes an ongoing discipline and internal practices to control and optimize the spend environment.

Well then, Chris, how can I seek out true spend management companies you might ask? I am glad you asked. Characteristics to be mindful of when considering utilizing a vendor to provide spend management services include: proven data-driven results; the breadth of expertise within that spend area; the makeup of the project team to ensure they bring relevant acumen to the table that is of value to your company; technology solutions--technology solutions--technology solutions; a client list that speaks to your specific industry and spend criteria; white papers, and a consultative and partnering mentality that they bring to each and every project. Experience has shown that such characteristics would indicate that the vendor is capable of not only cost cutting but also implementing far-ranging spend management practices.

The number of indirect spend areas that are in the crosshairs of the vigilant CFO is growing (energy, waste management, logistics, telecom, office supply, accounts payable, printing, cost segregation, etc.), so would the real cream please rise to the top?!!

Importer Security Filing Fines, Penalties, and Their Mitigation

As noted in the previous posting, up until recently the required Importer Security Filing (ISF) information was typically provided after the order had shipped.

Because of the change in information and document flow ISF compliance requires, U.S. Customs has allowed a period of “flexible reporting” and “flexible enforcement” ending January 26, 2010. This is when fines, penalties, and “Do Not Load” messages will begin.

Flexible Reporting –

The actual manufacturer or supplier, country of origin, HTSUS (U.S. customs tariff classification), and final ship-to party may not be accurately known 24 hours before the cargo is loaded. Until January 26, 2010 importers will be permitted to submit an initial response based on their knowledge or data available at the time of filing. They must then update the ISF with accurate information no later than 24 hours prior to arrival at the first U.S. port.

Flexible Enforcement –

CBP will refrain from assessing fines or penalties as long as the importer is “showing good faith” in filing accurate and on-time ISFs during this period. CBP has begun issuing “report cards” documenting current accuracy and timeliness, and expects continued importers compliance improvement.

The “flexible reporting” and “flexible enforcement” period ends January 28, 2010, when CBP will begin issuing fines. They will then also issue “Do Not Load” messages via AMS to the carriers, effectively “stranding” containers at origin.


ISF Penalties and Mitigation

CBP has now released their guidelines for determining and levying ISF penalties and what it considers potential mitigating circumstances regarding severity of the penalties.

The ISF ruling and guidelines on penalties and mitigation are written vaguely. They provide CBP almost unprecedented discretion and a wide range of actions in both assessing and resolving claims of infraction. In fact, CBP may simply allege failure to file, incomplete or incorrect data, and treat as breach of the importer’s bond; i.e. the importer failed to comply with U.S. import laws and regulations.

First offenses are subject to fines and penalties (liquidated damages) up to us$5,000, and may increase with subsequent violations. The most serious violation is obviously failure to file and blatant deception.

Major offenses under ISF include failure to file, filing late, filing inaccurate information, failing to file updated information, and failure to withdraw a filing the importer has learned is inaccurate.


Published mitigating factors for importers include:

√ Evidence of good faith progress providing ISF data during the “flexible period”
√ Relatively low number of violations compared to total ISF filings
√ ISF failure due to reasons beyond the control of the importer (i.e. carrier had to divert ship to another port)
√ Faulty ISF data was based on commercial or shipment information from another party but within normal international commercial acceptance.

Cancellation of ISF fines and penalties may be possible if the importer can demonstrate it was not able to verify the data before the filing and / or it was reasonable to believe the information was true, and corrective action has been taken. Up to 50% reduction of fines is possible if the ISF importer is C-TPAT certified.

Published aggravating factors are:

X ISF failures were intentional deception, part of smuggling, or supporting violations of other import laws or regulation
X Consistent faulty data or violation for the same data field
X Consistent multiple errors on the same ISF
X Obstruction or failure to cooperate with Customs investigations of any violation

Due to the fast approaching final deadline (January 26, 2010) to be in full ISF compliance, it is highly recommended that U.S. importers advise their suppliers of these new requirements. It would also be appropriate to revise and amend foreign purchasing agreements, Letters of Credit, etc., to clarify and define supplier or seller support for this data collection. If you are a Supplier or Agent for a U.S. Importer and have not been contacted by your clients please reach out to them now.

If you do not fully understand the Importer Security Filing requirements, need assistance in selecting a partner or implementation, or have any other questions, please contact us immediately!

Full Importer Security Filing Compliance Deadline Fast Approaching!

In only three months the Importer Security Filing, also known as ISF or 10+2, will go into full effect. Many importers are still unaware of the consequences of non-compliance, or have simply been postponing implementation. Now, however, it is really time for action.

Basis of ISF

The Importer Security Filing is based on the USA’s SAFE Port Act of 2006. U.S. Customs and Border Protection (CBP) published its ruling on the Importer Security Filing on November 25, 2008. Similar to the 24-Hour Advance Vessel Manifest (AMS) rule, C-TPAT, Container Security Initiative, and other security measures, ISF is designed to improve national and international security.

Since January 26, 2009, all U.S. importers (definition also amended by CBP for this ruling) have been required to electronically submit 10 data elements, plus bill of lading numbers, 24 hours prior to the loading of containers and break bulk cargo onto ocean vessels at the foreign port. The ocean carrier must also file 2 data elements - the vessel stow plan and the container status messages. This is the “+2” of 10+2. The key or connector to the ISF, the AMS, and the customs entry is the house bill. The 24-hour advance “timing” is based on the AMS filing and container status message data.

This ISF information must be filed for all ocean shipments entering, or even just transiting the USA, including shipments going into Free Trade Zones (FTZ). For In-Transit or FTZ shipments only 5 of the 10 data elements must be filed. Please contact me if you are interested in a comparison chart of the individual breakdown of data elements for these shipments.

Filing the ISF

U.S. importers may choose to file this information themselves, or contract with an agent to do this for them. However, only those entities certified for transmitting electronically to U.S. Customs via AMS (normally forwarders and NVOCCs) or ABI (customs brokers) interfaces may submit the actual ISF filing. Obviously most ISF filings will be submitted via a “Filing Agent”, much the same as most customs entries are filed by a customs broker. Either way, legal culpability for filing in an accurate and timely manner remains entirely with the importer.

The best ISF filing programs support web-based, user-level access, allowing both electronic download or manual input of data by the shipper (or its supplier / vendor), and allowing the importer or customs broker to verify / edit data prior to filing. This is a very important aspect as U.S. Customs will later compare the ISF filing with the actual customs entry to verify accuracy of the importer’s ISF data.

Acquiring the ISF Data

Much of the required ISF information has historically not been available until later in the time-line of events, as the export and commercial documents have typically been issued well after the shipment was loaded and placed in transit. U.S. importers must work with and educate their foreign-based suppliers regarding the new information requirements, and develop a method to submit or provide this information to their Filing Agent in a timely fashion. This “need” is critical because fines of $5,000 per incorrect or late filing can be issued.

Because of the change in information and document flow ISF compliance requires, U.S. Customs has allowed a period of “flexible reporting” and “flexible enforcement” ending January 26, 2010. This is when fines, penalties, and “Do Not Load” messages will begin.

I will address this “flexible” period as well as ISF fines & penalties, and their potential mitigating factors in my next post.

Panelist appearance on BlogTalk Radio: Spend Management vs Spend Intelligence

I had the fortune today of being part of a panel discussion on Jon Hansen's BlogTalk Radio show PI Window on Business. Jon's topic for today was around the topic of Spend Management and, specifically, the difference between spend analysis and spend intelligence. The panel consisted of two other business professionals; an author, speaker and consultant on management consulting and a professional that handles Sarbanes-Oxley compliance issues within businesses.

Hansen's idea for the show stemmed from an article titled Spend Intelligence: The Next Wave of Spend Analysis (Sudy Bharadwaj - Supply Chain Management Review 9/1/2006). The show covered a number of interesting points including the idea of there even being a difference between spend analysis and spend intelligence, the role of on-demand reporting and Software as a Service (SaaS), change management issues that organizations face in adopting a new, best practice approach and other interesting topics.

The show aired live on 9/24/09 and the on-demand audio is hosted below. I look forward to any comments you may have.

Scrapping or mothballing ships may keep capacity articially low and rates high

The story by Simon Parry of the UK’s Daily Mail is an excellent overview of the true current crisis in the ocean freight sector ( http://www.dailymail.co.uk/home/moslive/article-1212013/revealed-the-ghost-fleet-recession.html ). This is a “must read” article if you want to know what is really happening in ocean freight and how it will continue to impact all of us over the next few years.


Like many supply chain professionals I like and read the Journal of Commerce daily, and am up-to-date on the changing numbers side of this issue. In short, the current (depending on your sources) idle ship statistics are approximately:

Container traffic = 12-15%
Roll On – Roll Off traffic = 20%
Tanker traffic = 2-15%

While oil production has dropped about 13%, only about 2% of tankers are listed as idle. This is partly due to incomplete reporting, but more likely due to oil producers leasing the idle ships to store crude and keep “market” supplies lower – http://www.msnbc.msn.com/id/29495753/


Simon’s article, however, not only presents the numbers, but has also covered personal viewpoints and details that are typically missing from mainstream industry-related publications. It is really quite good.

You may want to check with the Journal of Commerce occasionally to get updates. Here are links to a few of their recent articles (FYI - Box ship = container ship. TEU = 20 foot container. Divide by 2 to get 40 foot container equivalent).

This year container lines are set to scrap ten times more ships than average and the most ever recorded in one year – http://www.joc.com/node/412132.


Close to 15% of container ships may stand idle by end of 2009 – http://www.joc.com/node/412342.


Roll On – Roll Off = car, truck, equipment carriers – http://www.joc.com/node/412397.

By the way, Baltimore Ro-Ro shipments (the nation’s top overall Ro-Ro port and No. 2 in automobile exports) are down 14 % this year.


Scrapping or idling ships in this manner serve to drive capacity down and provide the basis for higher rates. We have spoken to rising ocean freights rates in a recent post (see below).