Abady Law Firm, P.C. – Customs and Import/Export Attorney Blog

Learn the Basics of Customs and International Trade Policy and Procedure

Smoke Shop Importing Into the U.S. – What Should You Know?

U.S. Customs and Border Protection (CBP or Customs) is the federal agency in charge of determining the admissibility of items sold in smoke shops across the country.  Presently, we have been asked by importers across the United States for information regarding how to determine whether ones product will meet scrutiny by CBP.  Moreover, whether Customs would permit entry of these products into the United States.

For such products like water pipes, grinders, blunt wraps/wrappers, and vaporizers CBP will consider whether the specific product you are attempting to import constitutes “drug paraphernalia.”

The relevant statute, 21 U.S.C. Section 863 provides,

(a) In general It is unlawful for any person—

(1) to sell or offer for sale drug paraphernalia;

(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or

(3) to import or export drug paraphernalia.

Pursuant to 21 U.S.C. Section 863(d), the term “drug paraphernalia” is defined as:

[A]ny equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—

(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(2) water pipes;

(3) carburetion tubes and devices;

(4) smoking and carburetion masks;

(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;

(7) chamber pipes;

(8) carburetor pipes;

(9) electric pipes;

(10) air-driven pipes;

(11) chillums;

(12) bongs;

(13) ice pipes or chillers;

(14) wired cigarette papers; or

(15) cocaine freebase kits. (Emphasis added).

How do you determine whether an item is considered drug paraphernalia?

21 U.S.C. Section 863(e) provides that:

[I]n addition to all other logically relevant factors, the following may be considered:

(1) instructions, oral or written, provided with the item concerning its use;

(2) descriptive materials accompanying the item which explain or depict its use;

(3) national and local advertising concerning its use;

(4) the manner in which the item is displayed for sale;

(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;

(7) the existence and scope of legitimate uses of the item in the community; and

(8) expert testimony concerning its use.

Lastly, 21 U.S.C. Section 863(f) lists exemptions:

(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or

(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory. (Emphasis added).

The U.S. Supreme Court examined the meaning of “drug paraphernalia” pursuant to 21 U.S.C. Section 863 in the matter of Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), and considered the phrases (1) “primarily intended for use” and (2) “designed for use” in such case.

The Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. Posters ‘N’ Things, 511 U.S. 513, 521 (1994). Moreover, the Court noted that this “is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features.” Id. at 521 n.11.

The court stated that “items ‘primarily intended’ for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Id. at 521 n.11. Therefore, items having possible multiple uses may constitute drug paraphernalia for purposes of 21 U.S.C. Section 863 if the likely use by customers of the seller of the items is for use with illegal drugs.

Customs will make the determination on a case-by-case basis about whether your product falls within the context of drug paraphernalia.  Accordingly, one should take into account the relevant factors that CBP considers when publishing its rulings on such products.  Further, one should speak with an attorney who focuses on Customs law to ensure that the best arguments are presented to CBP for clearance of their smoke shop products into the United States.

For more information about an importing smoke shop and vape products or for assistance with any of the issues noted above, contact Abady Law Firm, P.C., at 800.549.5099, to speak with a customs law attorney.

Everything You Need to Know About an FDA Notice of Action

The U.S. Customs and Border Protection (CBP or Customs) works in conjunction with the Food and Drug Administration (FDA) to ensure that products are in full compliance before they are imported or exported to and from the United States. At times, the FDA or Customs may deny the entry of a product if they determine that a good or product fails to meet strict import/export requirements. When this happens, the product is detained for further examination. Depending on the findings of the examination, the FDA may issue a Notice of Action.

FDA Notice of Action

Regulated products must comply with the FDA’s Food, Drug and Cosmetic Act. Any products entering U.S. customs that are found to be or are suspected of being non-compliant are detained for further physical examination. The FDA district office then issues a “Notice of FDA Action.” This notice specifies the nature of the violation and gives the consignee or owner of the product an opportunity to respond and provide evidence as to the admissibility of the product.

Responding to The FDA Notice of Action

While you may feel like venting your frustrations or anger with the FDA or Customs officer who detained your product, it is wise to keep your cool and consult with a Customs law attorney who can advise you on your legal options and your next course of actions. You must act promptly when you receive a Notice of Action because it is time-sensitive.

  • Gather all pertinent facts about the detention. Do not respond to the Notice of Action until you have all of the facts.
  • Thoroughly review the Notice of Action. It would be a good idea to do this with a Customs attorney so he can explain the violation(s) for which your product was detained and address any questions and concerns you have.
  • Note the “Response By” date by which you must submit your response. If you do not respond by the specified date, the FDA will issues another Notice of FDA Action that will refuse admission of the product. You will be ordered to export the product elsewhere or destroy the product within 90 days.  Further, it is highly difficult to have the FDA rescind a refusal once one has been issued.
  • You response should include a detailed explanation and and any evidence showing that you have taken the necessary measures to bring your product into compliance and have resolved the circumstances that lead to the violation (s). A Customs lawyer can assist you with this.

If you have a good or product that is detained in Customs, plan to import a product and need information on importing requirements and procedures, or you simply need assistance obtaining import documentation, contact a Customs law firm right away.

Don’t wait until your product is tied up in bureaucracy or sitting in an FDA detention center. An import and export attorney will work diligently to make sure your product is in full compliance with all FDA and international requirements to the mutual satisfaction of all parties involved.

For more information about an FDA notice of action or for assistance with any of the issues noted above, contact Abady Law Firm, P.C., at 800.549.5099, to speak with a customs law attorney.

Frequently Getting Selected by Customs and Border Protection for Additional Screening at U.S. Ports or Borders? Here’s What You Can Do…

If you find yourself consistently being detained for secondary screenings at U.S. entry ports when returning from international destinations, you should probably contact the Department of Homeland Security’s Travel Redress Inquiry Program (“DHS TRIP”).

The above statement also applies to travelers who:

  • Often face problems at ports of entry
  • Were delayed or denied entrance on an airplane
  • Were denied or delayed when trying to enter or exit U.S. ports of entry or border checkpoints.
  • Feel that they have been improperly or unfairly: denied, delayed, or required to undergo additional screening at national transportation hubs.

The reasons for these additional screenings can be anything from being confused with someone else, or past convictions. Fortunately, for those who fall into any of the above categories, there are steps you can take to ease your entry and exit through these ports.

Step 1: Figuring out why you are repeatedly selected for additional screening

If you do not understand why Customs and Border Protection (CBP) keeps singling you out for additional screening, you should to find out why. That task is not particularly difficult since the Freedom of Information Act (FOIA) allows you to request copies of all information CBP has on you. The information on DHS databases go as far back as 1982, so by submitting a FOIA request on CBP.org, you should be able to pinpoint why you are being targeted at entry ports.

Step 2: Correcting erroneous information on your DHS files

Once you figure out why you are often made to undergo additional screening by CBP, you can file an inquiry through DHS TRIP to have incorrect information corrected. It’s a straightforward process that only requires a computer and internet access.

Simply head to the online form, and fill out the required information.

If you found erroneous information in the copies you received from your FOIA request, you should address that in the appropriate part of the form. Make sure you include details and any other information that can help clear things up.

You’ll also be required to send in copies of some documents with your inquiry like your passport. Copies of these can be sent via snail mail or scanned and sent to TRIP@dhs.gov.

Once your inquiry is accepted, you will be sent a Redress Control Number. This allows you to check up on the status of your inquiry and for booking flights once your inquiry has been resolved.

So, if you find yourself getting consistently singled out at U.S. entry ports and would like to avoid more of the same in the future, the above steps should point you in the right direction. However, you should note that resolving issues on your DHS files does not automatically exempt you from additional screening in the future. The selection process for determining which travelers are singled out depends on many other factors like random selection and travel patterns.

Generally speaking though, a positive outcome from your DHS TRIP inquiry should make it a lot easier for you to enter and exit U.S. ports.  One should seek the advice from an attorney to increase the probability of success through the DHS TRIP. 

For more information on this customs issue or to request a consultation with Abady Law Firm’s customs attorney, visit  www.customsesq.com or call (800) 549-5099

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Understanding the Charges That Come with a CBP Inspection Conducted at a Centralized Examination Station

If you have recently had a container inspected by Customs and Border Protection (CBP), you are probably wondering why you are being charged by the Centralized Examination Station (CES) conducting the inspection.

While those charges might seem strange at first, it’s all part of the regular examination process.

Every day, thousands of shipments make their way through U.S. ports of entry, and it is the CBP’s responsibility to ensure that these shipments do not contain contraband or otherwise illegal items.

In order to protect our borders CBP has the right to inspect any shipment that enters the United States, and it is the importer’s responsibility to bear the costs of all cargo exams performed by the CES. It’s all under 19 USC 1467. That law applies to household products as well since there is no distinction between personal and commercial shipments when it comes to port inspections.

The CBP has the right to examine any shipment that comes through U.S. ports, period.

The law also states that the owner of the shipment is responsible for any costs associated with the examination in 19 CFR 151.6: The Government shall be reimbursed for the compensation, computed in accordance with § 24.17(d) of this chapter, and other expenses of the Customs officer or employee supervising the action permitted.

CBP does not charge for inspections, but other costs can arise when shipments are sent to a CES for further examination. The charges for the inspection are not actually coming from CBP, it’s the CES – which is a privately owned entity – that charges for the costs associated with examinations.

Once an inspection is ordered by the CBP, the shipment is moved to a CES facility. There, the cargo will be unloaded, examined, reloaded, and then transported back to its original location. The bill that is sent to you is for the costs associated with all these tasks, plus storage fees in some cases.

The exact amount you end up getting charged varies depending on a host of factors like location, size of your shipments, and the distance to the nearest CES facility. The charges can be as high as a few hundred dollars in some cases, or less than a hundred in others.

While these charges might be inconvenient for some, using CES facilities for inspections allows for more timely and efficient inspections for all.

For more information on the charges that come with a  CBP inspection as well as any other customs law issue, please contact Abady Law Firm (www.customsesq.com) at 800-549-5099

How to Successfully Be Removed from the FDA’s Import Alert List

It’s not always a good thing to be “on the list,” particularly if you’re on the black list. One such black list is the FDA’s Import Alert list. Being placed on this can mean big problems for a company, and it requires the assistance of a professional customs attorney to petition for removal.

What is the FDA’s Import Alert List?

Basically, if a company is placed on this list, it means the FDA is providing a warning to importers around the world that the company’s products present safety concerns. If an Import Alert is placed on products or a company, it can mean not only big headaches, but also significant costs.

The FDA is able to automatically detain said products at the border, also known as Detention Without Physical Examination (DWPE). Although many products flagged with an Import Alert can still be imported into the U.S., it becomes a very expensive process for importers, lowering the amount of money they’re willing to pay for the flagged products.

If the FDA opts to refuse a shipment as a result of the importer doing nothing about an automatic detention, the shipment is either exported or destroyed. It’s also possible for the FDA to request Customs seize the detained products.

A few examples of reasons are placed on these lists are because of pesticide and contaminant residues and the presence of salmonella.

The FDA has set-up a comprehensive Import Alert page allowing users to search by company name, country and other criteria.

If a company is placed on the FDA’s black list, it can’t be removed until sufficient evidence is produced, showing the merchandise meets FDA compliance requirements.

Removal from the Import Alert List

The exact methods used for removal from the Import Alert list are directly related to the reason a company was placed there to begin with. If a food finds its way to the list as a result of misbranding, the FDA requires that at least five consecutive shipments enter the U.S., with at least one of those being audited for compliance by the FDA. It’s also worth noting these shipments can’t be made over one day or any other unreasonably short period of time.

In addition to the auditing process, it’s necessary that a Petition be filed directly with the FDA, requesting removal from the list. Important information included in a Petition include the specifics of the products in question, their entry numbers, and a variety of other relevant documentation.

A Petition isn’t just a cut and dry process. It has to be persuasive, and convincingly show the problem has been completely remedied.

While there are instructions provided by the FDA demonstrating how the removal process works, most people find success through the assistance of a qualified and experienced customs attorney. A customs attorney such as www.customsesq.com (Abady Law Firm, P.C) helps their client make a convincing case for removal, and they can also guide them through the lengthy and extensive paperwork and documentation required during the process.

Not only is the company charged with showing the problem has been fixed for current shipments, but it’s also responsible for outlining how a future problem will be avoided.

If your company is losing money as the result of placement on the FDA’s Import Alert list, contact us. Our import/export attorneys can provide you with the counsel you need to regain your profits and be removed from this highly detrimental list.

Please see article by Virtual-Strategy Magazine entitled Less than 3% of Companies on FDA Import Alert Red Lists Petition for Exemption Read more: http://www.virtual-strategy.com/2014/11/05/less-3-companies-fda-import-alert-red-lists-petition-exemption#ixzz3IEOALsE6

Resource Information

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with our customs attorney at (800) 549-5099. Also visit www.customsesq.com to chat with a customs lawyer — who has insight into the FDA import alert list — about your company’s import situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

Don’t forget to LIKE US on Facebook for firm news, import/export news and legal updates.  

Global Entry – Expedited Clearance for Travelers Through U.S. Customs

International travelers, do you hate waiting on line in order to clear Customs at airports around the country? Global entry is a program established by  U.S. Customs and Border Protection (CBP) that expedites clearance for pre-approved, low-risk travelers upon arrival in the United States.  Instead of waiting on those long lines, one is able process their clearance through Customs at Global Entry kiosks where one can scan their passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration.

In order to become accepted under the Global Entry program travelers must be pre-approved.   This includes a full background check and interview.

What are the advantages under the Global Entry program?

Globalentry.gov provides that there is:

  • No processing lines
  • No paperwork
  • Access to expedited entry benefits in other countries
  • Available at major U.S. airports
  • Reduced wait times

Globalentry.gov further provides the following reasons for a DENIAL under the Global Entry program:

  • Provide false or incomplete information on the application;
  • Have a criminal history, have been convicted of any criminal offense or have pending criminal charges or outstanding warrants;
  • Have been found in violation of any customs, immigration or agriculture regulations or laws in any country;
  • Are subjects of an ongoing investigation by any federal, state or local law enforcement agency;
  • Are inadmissible to the United States under immigration regulation, including applicants with approved waivers of inadmissibility or parole documentation;
  • Cannot satisfy CBP of their low-risk status (e.g. CBP has intelligence that indicates that the applicant is not low risk; CBP cannot determine an applicant’s criminal, residence or employment history)

Need help applying for the Global Entry Program?  Were you denied and need assistance filing an appeal? Was your Global Entry status revoked?

Resource Information

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with our customs attorney at (800) 549-5099. Also visit www.customsesq.com to chat with a customs lawyer — who has insight into applying or appealing into the Global Entry Program — and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

Don’t forget to LIKE US on Facebook for firm news, import/export news and legal updates.  

Currency Seizure: Transporting Cash Through FedEx, UPS, or DHL

Have you ever thought of placing cash inside of an envelope and sending it across the globe?  There are places around the world where one will find strict economic controls on their people or have problems with crime.  As such, sending money to friends and family becomes a dangerous and/or difficult process.  For example, if your friend was in dire need of money and the only way of getting it to him was to place cash in a box and ship it to a specific location, would you? If you decide to do so, be careful.

If Customs and Border Protection (Customs)/Homeland Security seizes your cash when transported through Express Consignments (i.e. FedEx, UPS, DHL) you will likely find that the alleged violations are of 19 U.S.C. §§ 1481, 1484, and 19 C.F.R. Part 128. Further, Customs will reason that you misdescribed currency/monetary instruments in express consignment shipments. If this occurs you will be facing administrative forfeiture proceedings.  A seizure notice will be issued to the sender and recipient of the package. On that notice you will be told where the cash was seized, the date of seizure, the reason for the seizure, and a list of options to contest the forfeiture.  It is best to consult an attorney experienced in Customs matters at that point as a poorly planned strategy may end up leaving your cash forfeited to the United States government.

Land Rover Defender Destroyed By U.S. Customs – How Can This Be Prevented?

I have represented many importers looking to import vehicles from around the world into the United States.  For those doing so, one must ensure that the vehicle is in compliance with the laws and regulations of the Department of Transportation. Otherwise, entry into the United States will be prevented by U.S. Customs and Border Protection. If a violation is found, the importer will face the possibility of a seizure and severe penalties for failing to comply.  If you find yourself in such a situation best to contact an attorney experienced in handling such matters to minimize such consequences and achieve the best possible solution under the circumstances.

You do not want to find your vehicle victim to the following:  http://autos.yahoo.com/video/u-customs-crush-land-rover-144127210.html

U.S. Export Sanctions to Iran Lifted on Electronic Devices

On May 30, 2013, the U.S. government issued a General License on the export of electronic devices such as, cellphones, laptops, computers, and wireless routers to Iran.  This effectively ended a ban that has been in place since 1992.  According to the Department of Treasury’s press release “this General License aims to empower the Iranian people as their government intensifies its efforts to stifle their access to information.”  Pursuant to 31 C.F.R. Part 560 the General License does not authorize the export of any listed equipment to the Iranian government or to any individual or entity on the Specially Designated Nationals (SDN) list.

If you have any questions about the specifics of this regulation or would like to begin exporting authorized electronic devices or any other types of goods to Iran contact us at 347-512-9007 for legal assistance.

Import/Export Attorney: OFAC, Cuba, and Baseball

The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments.

Baseball and Cuba are synonymous.  Cuba has been known to develop top talent in Major League Baseball.  Such names include Rafael Palmeiro, Jose Canseco, Minnie Miñoso, and Camilo Pascual. However, given the lack of diplomatic relations between the United States and Cuba it has been difficult for Cuban nationals to represent their homeland.  When a player decides to defect from Cuba, he has made his choice between the two countries.   Today, top Cuban Major League players include Yoenis Céspedes, Aroldis Chapman, and Leonys Martin.   In order to sign with a major league team these Cuban baseball players had to first present either an unblocking license from the U.S. Office of Foreign Assets Control (OFAC) or two permanent residency documents from another country. See 31 C.F.R. 515.505 below:

(a) General license unblocking certain persons. The following persons are licensed as unblocked nationals, as that term is defined in § 515.307 of this part:

(1) Any individual who:

(i) Has taken up residence in the United States;
(ii) Is a United States citizen, a permanent resident alien of the United States, or has applied to become a permanent resident alien of the United States and has an adjustment of status application pending; and
(iii) Is not a specially designated national; and

(2) Any entity that otherwise would be a national of Cuba solely because of the interest therein of an individual licensed in paragraph (a)(1) of this section as an unblocked national.

(b) Specific licenses unblocking certain individuals who have taken up permanent residence outside of Cuba. Individual nationals of Cuba who have taken up permanent residence outside of Cuba may apply to the Office of Foreign Assets Control to be specifically licensed as unblocked nationals. Applications for specific licenses under this paragraph should include copies of at least two documents indicating permanent residence issued by the government authorities of the new country of permanent residence, such as a passport, voter registration card, permanent resident alien card, or national identity card. In cases where two of such documents are not available, other information will be considered, such as evidence that the individual has been resident for the past two years without interruption in a single country outside of Cuba or evidence that the individual does not intend to, or would not be welcome to, return to Cuba.

For more information regarding OFAC as it relates to baseball contact us at 347-512-9007.