Monthly Archives

March 2010

U.S.Customs

How to Tell U.S. Customs You Made a Mistake

posted by Customs & International Trade Law Blog March 19, 2010 0 comments

For any importer of commercial cargo into the United States, there are numerous U.S. Customs requirements to consider such as declaring the correct tariff classification, customs valuation, and country of origin.  Sometimes, an importer (or its customs broker) makes a mistake. If the mistake is not corrected by the importer timely with U.S. Customs, the mistake may result in a fraud penalty by U.S. Customs against the importer.  We’re talking about a lot of money.

Under 19 U.S.C. 1592, that penalty amount may be equal to the total value of the imported merchandise.  Fortunately, U.S. Customs has a "prior disclosure" procedure set forth at 19 CFR 162.74 for importers to advise U.S. Customs of a mistake before U.S. Customs learns of it and initiates its own investigation.

Importers thinking of making a Prior Disclosure to U.S. Customs should carefully consider a Federal Register Notice by U.S. Customs issued on October 21, 2009 entitled "Use of Sampling Methods and Offsetting of Overpayment and Over-Declarations in CBP Audit Procedures; Sampling Under Prior Disclosure"  Although not yet a Final Rule, it does affect how importers should calculate lost revenue in making a prior disclosure. Moreover, it affects how U.S. Customs will calculate lost revenue and monetary penalties under 19 U.S.C. 1592. 

The propose regulation would explicitly provide "for the use of sampling methods in audits conducted by CBP under 19 U.S.C. 1509." A new subsection 162.74(j) "Prior Disclosure Using Sampling" would be added to the U.S. Customs Regulations. That regulation specifically would state that "A private party may use statistical sampling to ‘disclose the circumstances of a violation’ and for calculation of lost duties, taxes, and fees for purposes of a prior disclosure." 

The comment period for this proposed regulation ended on December 21, 2009, and a Final Rule is soon to be issued by U.S. Customs.  I look forward to U.S. Customs implementing the new regulations.

ExportFreight Forwarding

FREIGHT FORWARDERS ARRESTED IN MIAMI FOR SHIPPING SONY PLAYSTATIONS

posted by Customs & International Trade Law Blog March 12, 2010 0 comments

To the dismay of the local international trade community, three international freight forwarding companies and their owners are being criminally prosecuted for illegally exporting merchandise to a company in Paraguay. The company in Paraguay had been designated a “Specially Designated Global Terrorist” by the United States Government.  Exporters and forwarding companies sending any cargo to such a company, even Sony PlayStation video games, would be in violation of the law.

In an Indictment dated October 1, 2009, Case No. 09-20852-CR-GOLD, the United States Attorneys’ Office in Miami charged three Miami freight forwarding companies and their owners with violating the International Emergency Economic Powers Act (IEEPA),50 U.S.C. 1701 et seq., 18 U.S.C. 554 (fraudulently exporting from the United States), 18 U.S.C. 371 (conspiracy), and 13 U.S.C. 305 (knowingly submitting false Shippers Export Declarations or information through the Automated Export System (AES).

In summary, the Government has alleged that the Paraguay company paid an Ohio distributor of Sony PlayStations to ship those items to the freight forwarding companies in Miami. Once in Miami, according to the Indictment, the freight forwarders and their owners allegedly created documents falsely identifying the address of the company in Paraguay because they knew they could not ship the Sony PlayStations to the real address.  The real address of the company in Paraguay, according to the Indictment, had been designated by the Office of Foreign Assets Control (OFAC) as a Specially Designated Global Terrorist.  The designated terrorist was Galeria Page, an office mall in Ciudad del Este, Paraguay.

The case was investigated by the Miami office of the U.S. Immigration and Customs Enforcement (ICE) which issued a Press Release.  According to the Penalty Sheet filed with the Indictment, the maximum penalty for the individual owners of the freight forwarding companies who were arrested for the alleged violations is 20 years imprisonment.

To obtain a copy of the Indictment which was just unsealed on February 26, 2010, please contact me.

Food

FDA Finally Getting Tough on False Food Claims

posted by Customs & International Trade Law Blog March 9, 2010 0 comments

The U.S. Food and Drug Administration recently issued several warning letters to prominent food and drink companies regarding false claims displayed on their food and drink products, including those marketed to children.  Some food products brazenly claim to increase a person’s immune system, reduce the chance of getting a cold, or even cure cancer.  Are they really believable?

The Obama Administration has taken a more aggressive posture to attempt to reduce the obesity of Americans, especially children.  There is a direct connection between what we eat and our health.  Remember the saying “You are what you eat”?   Dr. Margaret Hamburg, the new FDA Commissioner, announced in a March 3, 2010 letter to food companies:

I have made improving the scientific accuracy and usefulness of food labeling one of my priorities…It is clear to me as a working mother that the use of front of package nutrition symbols and other claims can be helpful to busy shoppers who are often pressed for time in making their food selections.

In a typical December 4, 2009 Warning Letter to one of the worlds’ largest food companies, Nestle,  the FDA complained about Juicy Juice All Natural 100% Juice Grape products.  The FDA alleged that the product was misbranded because the labels were misleading in that the label was designed to imply that the producct was 100% grape juice when it truly was not.

The FDA regulations regarding food, including drinks, are complex.  True and accurate health claims are allowed on certain food products under specific circumstances, according to the FDA guidance.  Hopefully, the food industry will be more responsible, and if not, I encourage Commissioner Hamburg to pursue civil penalties against companies and the corporate officers of those companies who deceive the public.

A seminar about health claims on food products and how to respond to FDA Warning Letters will take place on June 3, 2010 in Miami, at a seminar entitled “Importing Food Products in Compliance with FDA and U.S. Customs Rules“.

In solidarity with FDA Commissioner Hamburg, I am a working Dad, and I don’t like to be lied to either!

 

U.S.Customs

Air and Ocean Carriers Must Sign New MOU With U.S. Customs On April 23, 2010

posted by Customs & International Trade Law Blog March 1, 2010 0 comments

Air and ocean carriers often unintentionally transport aliens into the United States who do not have a valid passport and/or an unexpired visa.  Carriers receive a fine from U.S. Customs and Border Protection of $3,000 for every such alien illegally transported.  Carriers get an automatic reduction of 50% of the fine by signing a Memorandum of Understanding (MOU) with U.S. Customs.  Carriers must obtain and submit a newly revised MOU to U.S. Customs on April 23, 2010.

On February 22, 2010, U.S. Customs issued a General Notice that all air and ocean carriers which had signed an MOU with either the former U.S. Immigration and Naturalization Service or U.S. Customs will no longer be effective. Only by submitting a new Fines Mitigation MOU countersigned by U.S. Customs Headquarters may fines be automatically reduced.  Carriers need to prepare now to comply with the many new changes in the MOU.

The new MOU has many changes, but the essential paragraph 3.10 still provides:

The Carrier shall maintain a reasonable level of security designed to prevent passengers from circumventing any Carrier document checks.  The Carrier shall also maintin an adequate level of security designed to prevent stowaways from boarding the Carrier’s aircraft or vessel.

Without the new MOU, fines will be issued against the carrier by U.S. Customs for violating the Immigration and Nationality Act, 8 U.S.C. 1323.   Reduction of the fine greater than 50% may be obtained by the carrier when a violation occurs by establishing that further mitigating or extenuating circumstances exited at the time of the violation that warrant the relief sought.  To do so, the carrier should carefully follow the guidelines set forth at 8 CFR Part 280.

In Florida , the U.S. Coast Guard has recently issued a directive notifying all carriers that every vessel arriving at port from Haiti will be subject to a boarding and examination.  As a result, the number of discovered stoways has increased dramatically, and fines are being issued to carriers.