February 2010

If You are an Owner or Officer of an Importer, This Blog Post is for You

In one of the most important recent decisions, the U.S. Court of International Trade dismissed a case filed against the CEO of his importing company that had made false statements to U.S. Customs and Border Protection in the entry documents. This Court decision has significant implications for every owner, officer, and manager of any company involved in importing merchandise into the United States.

The chronology of the case is somewhat familiar. In 2002, Tip Top Pants, Inc., imported from Mexico 954 dozen men’s pants, and claimed NAFTA duty free treatment. Customs issued a Request for Information (CBP form 28), and then a Notice of Action (CBP Form 29) denying the NAFTA claim. Customs then issued a Pre-Penalty Notice against both Tip Top Pants and its CEO, Mr. Nigri, alleging negligence, and assessing a penalty of $55,000. Tip Top filed a response to the Pre-Penalty Notice. Customs then issued a final Penalty Notice. Tip Top Pants filed with Customs another petition seeking cancellation or mitigation of the penalty. Customs never responded to that Petition filed by Tip Top Pant’s attorney.

Even though the disputed customs duties were subsequently paid by Tip Top Pants, Customs sued both Tip Top Pants, Inc. and its Chairman and CEO, Mr. Saad Nigri, for violating 19 U.S.C. 1592, by allegedly making material false statements or acts, or material omissions, in connection with the entry of the men’s pants from Mexico.

The Court took the unusual action of dismissing Mr. Nigri as a defendant in the case for two reasons. The first reason is that Customs failed to […]

By Jennifer Diaz|2015-12-28T14:16:05-05:00February 28, 2010|NAFTA|0 Comments

Who Should Give Advice to U.S. Customs?

I attended the Advisory Committee on Commercial Operations of Customs and Border Protection (COAC) meeting on February 25, 2010 in Miami. The 20 private sector members of COAC are jointly selected by the Department of Homeland Security and the Department of the Treasury, and include knowledgeable customs compliance and logistics personnel from such prominent companies as DHL, APL, Hasbro, and GE. The COAC meets four times a year to discuss creating or changing the policies and procedures of U.S. Customs and Border Protection (CBP) as they affect the international trade community.

The Miami meeting included an introduction by Acting Deputy Commissioner David Aguilar, referred to as “Chief” which is his title with the CBP component U.S. Border Patrol. Chief Aguilar spoke about “security,” “resilience,” and “protecting customs and exchange” which apparently is the new terminology for the former “facilitating international trade”. His introduction focused on assessing and mitigating risks of people and cargo entering the United States.

Substantive presentations were made by, among others, Therese Randazzo, Director, IPR Policy and Programs, Office of International Trade on behalf of the IPR Subcommittee. Therese discussed the new IPR sample bond form for trademark and copyright owners to use to get samples of detained or seized merchandise from CBP.

Rich DiNucci, Director, Secure Freight Initiative, Office of Field Operations on the topic of Importer Security Filing, stated there were 2,300 ISF filers with 141,000 unique importer record numbers. Rich stated that the timeliness of the ISF or “10+2” filing has increased to 75%. No penalties would be issued by CBP for […]

By Jennifer Diaz|2015-12-28T14:15:52-05:00February 25, 2010|U.S Department of Homeland Security (DHS)|0 Comments

Is $56 Billion of Your Money For Homeland Security Too Much, Too Little, or Just Right?

On February 1, 2010, Department of Homeland Security Secretary Janet Napolitano announced that the Department’s budget for fiscal year 2011 would be $56 billion. This was the first time for the Democratic Obama Administration to formally unveil its budget priorities after taking over from the Republican Bush Administration. Guess what – it’s more of the same.

The Federal Government’s fiscal year runs from October 1 to September 30, so the Fiscal Year 2011 budget begins on October 1, 2010. Examples of more of the same include more Federal Air Marshals on international flights, 500 more machines at airport checkpoints to detect dangerous materials, 275 more explosive detection canine teams, and more machines to scan 40 foot ocean containers entering the country for weapons of mass destruction, explosives, contraband, and illegal aliens. Compare this with prior budgets or the 2008 Five Year Plan for DHS, and you too may conclude that this is more of the same.

The Department of Homeland Security includes U.S. Customs and Border Protection, the U.S. Secret Service, the U.S. Coast Guard, the Transportation Security Administration (TSA), Immigration and Customs Enforcement, FEMA, and the U.S. Citizenship and Immigration Services. There are 230,000 employees in this mega-Department.

There are 3 items I especially like in the proposed budget.

(1) raising the journeyman level for uniformed Customs Inspectors, Border Patrol Agents and Agricultural Specialists from the GS-11 to GS-12 level (a $10,000 base salary increase to $60,000);

(2) a substantial increase in funding for stopping counterfeit merchandise from entering the United States, something which is very serious when […]

By Jennifer Diaz|2015-12-28T14:15:32-05:00February 16, 2010|U.S Department of Homeland Security (DHS)|0 Comments

Customs Brokers Under Investigation by U.S. Customs

With all of the complexities involved in the import process, even customs brokers can make mistakes such as by providing the wrong tariff classification of the imported item to U.S. Customs and Border Protection . A customs broker who makes such a mistake may become the subject of an investigation by U.S. Customs which ultimately results in a $30,000 penalty against the broker.

Customs brokers are often the best choice for importers to take care of all the formalities in clearing imported cargo through U.S. Customs, however, a customs broker who makes a mistake when declaring certain information to U.S. Customs may put the importer at risk of being accused of fraud by U.S. Customs in violation of 19 U.S.C. 1592. Increasingly often, the customs broker may itself be investigated by U.S. Customs for failing to exercise responsible supervision and control in violation of 19 U.S.C. 1641.

It is standard practice for U.S. Customs to demand that the broker appear before the Broker Compliance Unit of U.S. Customs at the local port of entry to answer questions about the mistakes discovered by Customs regarding a particular importer or set of entries. The broker is usually directed to bring with him/her certain documents for review by U.S. Customs at the meeting. The broker may be accompanied by an attorney during this informal stage of the investigation. The customer of the customs broker, the importer, is generally not made aware by U.S. Customs that its customs broker has been summoned to a meeting with Customs for a counseling session.

If […]

By Jennifer Diaz|2015-12-28T14:15:11-05:00February 12, 2010|Customs Broker|0 Comments

Bank Accounts Seized for Alleged Money Laundering

Bank accounts are more frequently being frozen or seized by the Federal Government. The typical allegation by the Federal Government is that the money in those bank accounts were the proceeds of money laundering. Often, the owners of the seized bank accounts were somehow connected to shipping cargo to, receiving cargo from, or doing business with Colombia. The owners of the seized bank accounts then typically receive a letter from U.S. Customs and Border Protection advising of the seizure, and the procedure to attempt to get the money back.

Money laundering typically means that the money in the bank account was seized because Immigration and Customs Enforcement (ICE) believes it was generated from the sale of illegal drugs. ICE refers to this type of financial crime as “Trade-Based Money Laudering.” So, for example, if a company in Colombia received money from the sale of drugs, and then purchased some merchandise from a U.S. company, and paid that U.S. company, the money received by the U.S. company could be seized as the proceeds of certain unlawful activity set forth in the money laundering law at 18 U.S.C. 1956. The allegation of money laundering is sometimes accompanied by an allegation of filing a false shipper’s export declaration or Automated Export System (AES) with U.S. Customs, in violation of 15 CFR section 30.7.

Persons who, or companies which have their bank accounts frozen or seized are entitled to know the reasons for such a severe action by the Federal Government. They are also entitled to challenge the […]

By Jennifer Diaz|2015-12-28T14:15:00-05:00February 5, 2010|Export|0 Comments

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