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

Learn the Basics of Customs and International Trade Policy and Procedure

Posts Tagged "Customs Seizure"

Hoverboards On Fire This Holiday Season – Literally

 

Burned hoverboard. Photo: CPSC hoverboard fire

This past holiday season hoverboards have been one of the most popular items this past holiday season.  As a result, we have received numerous phone calls regarding U.S. Customs and Border Protection (“CBP” or “Customs”) intense examinations of these products.  The reason being is that there have been cases where these hoverboards burst into flames due to counterfeit batteries being used to power them. See here http://nypost.com/2015/12/30/hoverboard-bursts-into-flames-inside-a-brooklyn-apartment/. This led to intervention by the Consumer Product Safety Commission (“CPSC”), the federal agency regulating the safety of consumer products nationwide.

Customs and CPSC work closely to ensure the safety of products that are imported in the U.S. Customs is the “enforcer at the border” and enforces not only their own regulations but the regulations of all third party federal agencies.  Here, importers must ensure the quality of these hoverboards before importation. Make sure the factory you purchase from has a licensing agreement with the trademark holder of the battery inside.  If you are dealing with an agent in a foreign country make sure you get a paper trail leading to the trademark holder.  Once these goods arrive at the port of entry there is generally no turning back.  The trademark holder is unlikely to offer any assistance if the batteries are counterfeit and Customs will detain, seize, forfeit and destroy these goods.  Meaning the importer is out the money spent to their supplier for the purchase of the goods and Customs may come after the importer for penalties (if you receive a penalty contact a Customs and International Trade expert immediately).

How can this mistake be avoided?  Make sure you get a full understanding of what you are buying, the components (and packaging) comprising a product are just as important as the product as a whole. A minor mistake will cost you, and seizure will not be remitted because of ignorance.   Further, Customs will have you flagged as a potential violator and you may see an increase is examinations (and delays) at ports of entry.   Thus, if there are any trademarks on the goods, seek documentation supporting their legitimacy.  If you need help with identifying issues or verifying documentation contact an attorney experienced in Customs and International Trade law.

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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 and international trade attorney —  about your company’s import/export situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

U.S. Customs and Border Protection Export Issues and Enforcement

We are seeing many Automated Export System (“AES”) violations as of late, especially with FedEx, DHL, and UPS shipments. As a result, please find information below regarding the export regulations and enforcement by U.S. Customs and Border Protection (“CBP”). 

What is the Automated Export System?

CBP published the Trade Act regulations in the Federal Register on December 5, 2003. The rule requires advance transmission of electronic cargo information to CBP for both arriving and departing cargo. In the Federal Register notice, CBP identified the AES  as the system for transmission of advance electronic export data for all modes of transportation.

On June 2, 2008, the U.S. Census Bureau published amendments to Title 15, Code of Federal Regulations, Part 30, Foreign Trade Regulations, mandating the filing of export information by the U.S. Principal Party in Interest (“USPPI”) or its authorized agent through the AES or AESDirect for all shipments where a Shipper’s Export Declaration (“SED”) was previously required.  SED information filed to AES became known as Electronic Export Information (“EEI”).

When do you need to prepare the EEI formerly SED to be filed with CBP?

  • Shipment of merchandise under the same Schedule B commodity number is valued at more than US$2,500 and is sent from the same exporter to the same recipient on the same day. (Note: Shipments to Canada from the U.S. are exempt from this requirement.)
  • The shipment contains merchandise, regardless of value, that requires an export license or permit.
  • The merchandise is subject to the International Traffic in Arms Regulations, regardless of value.
  • The shipment, regardless of value, is being sent to Cuba, Iran, North Korea, Sudan or Syria.
  • The shipment contains rough diamonds, regardless of value (HTS 7102.10, 7102.21 and 7102.31)

What happens if you fail to file the EEI or file the EEI late?

The absence or late filing of the Electronic Export Information in the Automated Export System (AES) or late filing of AES commodity data subjects the shipment to seizure.

If my goods get seized by U.S. Customs for an AES violation what do I do?

Read the following blog post for details about the U.S. Customs seizure process here and contact a professional experienced in such matters.

Additionally, look for the following language in your Notice of Seizure and Information to Claimants Non-CAFRA Form that would indicate an alleged AES violation:

Screen Shot 2015-03-18 at 7.15.28 PM

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

 

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

Customs Seizure: Petition for Remission or Mitigation of Forfeiture

Petitions for Remission or Mitigation of Forfeiture (“petition for relief”) are written presentations (sometimes supplemented with an oral presentation) whereby an alleged violator of a customs law or regulation responds to the government’s issuance of a penalty, claim for liquidated damages, or notice of seizure. A petition is the means for the alleged violator to convince Customs that there is a reason to remit or mitigate the penalty, liquidated damages, or seizure. Petitions are usually due 30 days from the date stamp on the notice (not the date in which it is mailed or received). One may ask for an extension if need be. Customs regulations (19 C.F.R. § 171.1) provide the following information when preparing a petition:

The petition for remission or mitigation need not be in any particular form. Customs can require that the petition and any documents submitted in support of the petition be in English or be accompanied by an English translation. The petition must set forth the following:

(1) A description of the property involved (if a seizure);

(2) The date and place of the violation or seizure;

(3) The facts and circumstances relied upon by the petitioner to justify remission or mitigation; and

(4) If a seizure case, proof of a petitionable interest in the seized property.

The alleged violator begins at a disadvantage – it is the accused who has the burden of proving its innocence. Thus, it is best to consult with an attorney about your options immediately, time is of the essence!

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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 administrative petition process — about your company’s import situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

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Notice of Seizure and Information to Claimants Form AF

Have you received a letter from Customs that looks like this http://twitpic.com/9j9rll ?

U.S. Customs and Border Protection is the agency responsible for protecting our borders. Accordingly, Customs officials at seaports, airports, and other border crossings all over the U.S. have the authority to examine, detain, and/or seize merchandise entering or exiting the country. More often than not, importers and exporters are surprised and intimidated when they find out that the government has intervened in their business. As a result, it is best to provide my readers some basic knowledge in an effort to appease any distress from Customs intervention.

Customs officials have a laundry list of “red flags” when targeting merchandise; they are looking for drugs, non-compliance with the Food and Drug Administration, counterfeit goods, and currency among many others. When Customs decides to detain a particular shipment the merchandise is transferred to a Centralized Examination Station where officials sort through and intensely examine the contents of the shipment. During the detention Customs must provide an explanation for the detention (see previous post for more detail). It is important to note that Customs explanation for the detention may have been provided under the advisement of another federal agency – as Customs is the “enforcer” for all other federal agencies relating to the import/export of products. Here is an example: Customs detained a shipment of T-shirts from Canada due to the failure to provide documentation that the importer has the authority to utilize a logo that is a registered trademark.

If Customs find a violation, they will seize it and transfer it from the Centralized Examination Station to an official warehouse. Throughout this process the importer is charged storage fees which must be paid if Customs agrees to release the goods. Seizures are handles by a department in Customs known as Fines, Penalties, and Forfeitures (FP&F). An FP&F paralegal reviews the case and issues a seizure notice to the alleged violator. The seizure notice will give information regarding the identity of the merchandise, the location of the seizure, and citations to legal authorities. Generally, the alleged violator is given options 1) abandon the goods; 2) file a petition with customs within 30 days of the issuance date on seizure notice; 3) file an offer in compromise (this option is beneficial in specific circumstances – best to speak with an attorney first to confirm whether an offer is the right strategy); or 4) take the matter directly to court for litigation (you need to fill out the seized asset claim form and post a cost bond equal to 10% of the value of the seized merchandise, or $5,000, whichever is lower).

At this time it is highly recommended to contact a Customs attorney regarding your best options and strategy moving forward.  If an attorney is hired, he/she would notify Customs that the alleged violator is being represented by counsel. Thereafter, generally, the attorney would make what is called a Freedom of Information Act Request (FOIA). This formal request is sent in order to gain access to records that customs has regarding the alleged violation.

If the petition option is chosen, the alleged violator is given an opportunity to explain to customs why the goods should be released. It is important to hire an attorney who knows the policies, procedures, and practices that customs has in place in order to convince customs to release your goods. Thereafter, customs will render a decision on the case and either grant or deny the petition. If denied, the alleged violator is given an opportunity to file a supplemental petition to which must state additional information not before provided to customs. Alternatively, the alleged violator can choose to file an offer in compromise whereby one can make an attempt to negotiate with customs by offering a monetary sum to settle the matter and release the goods.

As discussed, there are various options offered to the alleged violator under the law. It is best to consult with an attorney experienced in these matters to explain these options as they relate to a particular set of facts. TIME IS OF THE ESSENCE!

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 Notice of Seizure — about your company’s import situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.