Monthly Archives

September 2010

ExportImport

10 MOST COMMON MISCONCEPTIONS IN INTERNATIONAL TRADE

posted by Customs & International Trade Law Blog September 26, 2010 7 Comments

I have been an international trade attorney for over 20 years.  In that time, I have represented a few thousand companies involved in the importation, exportation, and international transportation of merchandise.  I have seen respectful, efficient U.S. Government employees and the most uncaring bureaucrats, importers who care about the law and others who only care how to get around it, and customs brokers who always try to do the right thing and others who you wonder how they ever passed the broker exam and the background check.  I have listed the 10 Most Common Misconceptions in International Trade.

I have actually heard intelligent people who are CEOs or General Counsels of their companies say the most surprising things to me over the years. 

1.  It is ok to bring in up to $100 worth of Cuban cigars into the United States.

2.  Dietary supplements that are "all natural" are not regulated by the U.S. Food and Drug Administration (FDA), and, therefore, can make all kinds of medical claims.

3.  The U.S. Government does not care about the value of cargo being exported from the United States because there are no duties, taxes or fees paid to the U.S. Government on exports.

4.  If an airlines passenger brings into the United States over $10,000 in cash, the passenger must pay a tax to U.S. Customs or the IRS.

5.  If an importer uses a customs broker to file an entry with U.S. Customs and Border Protection, and some false information is provided to U.S. Customs, only the customs broker is liable to U.S. Customs, not the importer.

6.  No one gets hurt by importing, buying and selling counterfeit merchandise.

7.  If some food product is marked with "Made in America" it must be good, but if it is marked "Made in China" it must be bad.

8.  Is an imported item is marked "Made in Vietnam" or "Made in Malaysia" or "Made in America" then if really must have been manufactured or produced in the identified country, and no other.

9. Since it is illegal to sell military items to places such as North Korea and Iran, if a U.S. company ships those items to a friendly country such as Australia or England, and the buyer in those countries then re-export them to North Korea or Iran, the U.S. company has done nothing wrong.

10.  A product manufactured in India, transported to Mexico, and then imported into the United States from Mexico should enter duty free under NAFTA because Mexico, Canada, and the United States are all members of the North American Free Trade Agreement (NAFTA).

FDA IssuesFood

Food Facility Registration Mandatory With The U.S. FDA

posted by Customs & International Trade Law Blog September 18, 2010 0 comments

On December 12, 2003, the U.S. Food and Drug Administration (FDA) implemented the Bioterrorism Act of 2002.  That Act basically required that companies shipping food to the United States must first be registered with the FDA, and that importers of food must provide "prior notice" to the FDA of any particular shipment before it physically arrives in the United States.  Over the past 7 years, has the Bioterrorism Act lived up to its expectations to protect the American consumer from eating dangerously contaminated food?

In an article entitled "Scrap the Bioterrorism Act" published in February 2004, I criticized the Act as not going far enough because it did not require (1) FDA Inspectors to be located in foreign countries sending us food,  (2) cooperation with foreign food inspection governmental authorities, and (3) mandatory recall authority to the FDA for contaminated foods.  In a May 6, 2010 report by the U.S. Government Accountability Office (GAO) entitled "Food Safety:  FDA Could Strengthen Oversight of Imported Food," it came to exactly the same conclusions. 

As stated in the GAO report:

The FDA physically examines approximately 1 percent of imported food.

Imported fish and other seafood is of particular interest to the FDA.  Obviously, FDA Inspectors cannot physically inspect every shipment of imported seafood, but every shipment that contains FDA-regulated products that enters the United States is electronically reviewed by the FDA  to determine if the shipment should be physically examined or a sample laboratory tested.   Hence, the prior notice information enables FDA, working closely with U.S. Customs and Border Protection, to more effectively target inspections at the border to ensure the safety of imported foods before the food enters the commerce of the United States.

Registration of food facilities that manufacture, process, pack, or hold food is suppose to help provide FDA with information on the origin and distribution of food.  The objective is that the registration will aid in the detection and quick response to actual or potential threats to the U.S. food supply, usually by microbiological contamination such as listeria.

If  an importer is attempting to import food from a foreign facility which has not been registered with the FDA, the food will be held at the port of arrival until the registration violation is corrected.  Registration by the foreign food producer and shipper may be easily accomplished, in multiple languages, at www.FDA-USA.com.  

My conclusion is that the FDA is doing a much better job at protecting the international food supply chain, but it needs the U.S. Congress to now pass the Food Safety bill, pending there for over a year, to really do an effective job. Coincidentally, the Sunday New York Times front page article "Senate Bill on Food Safety is Stalled," makes the same argument.

Seizures

U.S. Customs Seizures and Forfeitures are Unique

posted by Customs & International Trade Law Blog September 6, 2010 8 Comments

U.S. Customs and Border Protection (U.S. Customs or CBP) seizes and forfeits hundreds of millions of dollars of merchandise every year.  The IRS, DEA, U.S. Postal Service, and other Federal agencies also have the legal authority to seize and forfeit merchandise that were allegedly used illegally or were proceeds of alleged illegal activity, but U.S. Customs administrative and judicial forfeiture procedures are unique.  The answer is that seizures by U.S. Customs typically are not included within the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

The difference between a seizure under CAFRA’s  rules under 18 U.S.C. 983 – The General Rules for Civil Forfeitures, and the U.S. Customs rules under the Tariff Act of 1930 and the Supplemental Rules of Admiralty, is significant. These significant differences are often misunderstood, including by attorneys who do not regularly practice in seizure and forfeiture matters.   Under CAFRA, the U.S. Government must send an administrative seizure notice to affected persons within 60 days of the seizure, but for U.S. Customs cases, there is no such requirement. In fact, unfortunately, U.S. Customs often takes 90 to days to issue the Seizure Notice letter to affected parties such as the owner of the seized merchandise. Under CAFRA, a claimant has 35 days from the date of the notice of seizure to file its administrative claim or request judicial forfeiture.  For U.S. Customs cases, the claimant must file a Petition within 30 days of the seizure notice or, if seeking judicial review of the seizure, file a claim and cost bond equal to 10% of the value of the seized merchandise, up to a maximum of $5,000.  In CAFRA cases, no court bond is required.  Once in Federal Court, for CAFRA cases, the U.S. Government’s burden of proof is by the preponderance of the evidence.  In U.S. Customs cases, the Government has a lower burden of proof by establishing probable cause for the seizure, and then the burden shifts to the claimant to establish, by the preponderance of the evidence, that the property may not be forfeited. 

There are other numerous differences, a few of which are set forth in a comparison chart. One big difference is that in U.S. Customs cases, a claimant may file an administrative Petition with U.S. Customs seeking to get the seized merchandise released, and if unsuccessful, then go to Court.  In non-U.S. Customs cases, a claimant who chooses to file a Petition with the Federal agency and loses cannot then seek relief in Federal Court.  In general, filing a Petition with U.S. Customs or other Federal agency is the preferred alternative because it is often (1) faster, (2) less expensive, and (3) gives the greatest chance of success in getting the merchandise released from seizure.