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petition

CBPExportImport

Hate Unfair Demurrage Charges? Want to Do Something About it?

posted by Jennifer Diaz February 16, 2017 0 comments

FMC seal

Now’s the time to make your voice heard. Below details what demurrage charges are and a trade initiative that FMC is currently requesting comments on.

What is demurrage?

How Much Time is Provided for Free?

 What is Being Done to Change this Demurrage Fee?

  • Back in December, “the Coalition for Fair Port Practices, a group of 25 members that represent shippers, receivers, motor carriers, port draymen, freight forwarders, third-party logistics companies and customs brokers”, petitioned the Federal Maritime Commission (FMC) in hopes that the FMC would issue a ruling on extending the free time for container storage and equipment use that is disrupted by events outside of their control. Such events could be poor infrastructure, weather events, a carrier bankruptcy, port labor issues, etc.

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CBPCustoms BrokerImport

BEWARE – Liquidated Damages WILL be Imposed for 10+2 Violations

posted by Jennifer Diaz July 18, 2013 0 comments

For those who thought CBP’s “measured and commonsense” approach for those that weren’t fully complying with the Importer Security Filing (ISF or 10+2) rules would last forever, think again!

Effective, July 9, 2013, CBP advised it would start the liquidated damages phase of the Importer Security Filing (ISF) enforcement process. CBP will now make use of the newly activated cargo holds in the Automated Cargo Environment (ACE) system to address non-compliance with the ISF rule. CBP may also withhold the release or transfer of non-compliant ISF shipments at the terminal until the required ISF is filed. For carrier violations of the vessel stow plan requirement, CBP may refuse to grant a permit to unlade the merchandise. Once the ISF data is received and a security assessment is made, additional enforcement actions including a Non-Intrusive Inspection (NII) and/or intrusive exams may be initiated.

Liquidated Damages

CBP may also assess liquidated damages of up to $5,000 per violation for the submission of an inaccurate, incomplete or untimely filing. CBP Dec. 09-26 discusses “Guidelines for the Assessment and Cancellation of Claims for Liquidated Damages for Failure to Comply with the Vessel Stow Plan, Container Status Message, and Importer Security Filing Requirements.”  First violations may be mitigated to $1,000-$2,000 – depending on the presence of aggravating or mitigating factors.  Some mitigating factors for the failure to file a complete, accurate and timely ISF include evidence of progress in the implementation of ISF during the “flexible enforcement period,” small number of violations compared to number of shipments, Tier 2 and 3 C-TPAT status, remedial action….  CBP has advised that “no relief will be granted if CBP determines that law enforcement goals were compromised by the violation.”  Aggravating factors include multiple errors on your ISF!  If you do receive a Liquidated Damages claim, it is important you consult with an expert to file a timely, persuasive Petition to CBP and address all relevant mitigating factors to assure you receive the maximum reduction possible.

What’s ISF Again?

The ISF rules require importers and vessel-operating carriers to provide additional advance trade data on cargo shipments to CBP 24 hours prior to vessel lading, pursuant to Section 203 of the Security and Accountability for Every Port (SAFE Port Act) of 2006.

Importers must report the following 10 data elements on each ISF:

  1. Manufacturer (or supplier) name and address
  2. Seller (or owner) name and address
  3. Buyer (or owner) name and address
  4. Ship-to name and address
  5. Container stuffing location
  6. Consolidator (stuffer) name and address
  7. Importer of record number/foreign trade zone applicant identification number
  8. Consignee number(s)
  9. Country of origin
  10. Commodity Harmonized Tariff Schedule (HTS) number

From the carrier, 2 data elements are required:

  1. Vessel stow plan – required for arriving vessels with containers.
  2. Container status messages – required for containers arriving via vessel.

Hence, 10+2!

For shipments consisting entirely of freight remaining on board (FROB) cargo or goods intended to be transported in-bond as an immediate entry or transportation and exportation entry, the following 5 data elements are required:

  1. Booking party name and address
  2. Ship-to name and address
  3. Commodity Harmonized Tariff Schedule (HTS) number
  4. Foreign Port of Unlading
  5. Place of delivery

In order to avoid liquidated damages and untimely delays with your cargo, full ISF compliance is now required.  Since we’re talking compliance, do you have your pre-compliance plan established?  If not… Let’s talk!

If you have any questions on the listed requirements, need assistance with cargo detained as a result of this new enforcement phase, getting your C-TPAT application in ASAP (and getting to Tier 2 quickly!), or any other compliance or enforcement question, please feel free to contact Diaz Trade Law at info@diaztradelaw.com and we would be happy to assist you!

Best PracticesCBP

File Your Petitions Timely, Or Else…

posted by Jennifer Diaz March 6, 2013 0 comments

As of January 9, 2013, Customs and Border Protection (CBP) is making procrastinators pay the price for filing untimely petitions that seek relief from liquidated damages. CBP amended it’s guidelines for the cancellation and mitigation of claims for liquidated damages in cases where petitioners are late in filing claims for relief. Additionally, CBP also changed the formula for calculating late petition mitigation.

Current Rule for Timely Petitions

Under the existing regulatory authority, in order to be considered timely, petitions for relief in response to claims for liquidated damages must be filed:

  • A.    By bond principals within 60 days from the date of mailing of the notice of liquidated damages (see 19 C.F.R. 172.3(b)) or any lawful extension thereof; or
  • B.     By sureties within 60 days of the demand for payment by CBP (see 19 C.F.R. 172.4) or any lawful extension thereof.

When circumstances so warrant, extensions of the time period to file a petition may be granted by the FP&F Officer (FPFO) if such an extension of time is requested during the 60-day period available for timely filing a petition (see 19 C.F.R. 172.3(c)). The amendment to the current rule does not allow a petition for relief to be considered if it is filed after (a) the commencement of sanctioning action against the bond principal or (b) the issuance of a notice to show cause against the surety.

A party responsible for a liquidated damages claim may submit an offer in compromise to CBP pursuant to 19 U.S.C. § 1617 and 19 C.F.R. 161.5. These new guidelines, which will be applicable to all liquidated damages claims for which a late petition is filed on or after Jan. 9, are applicable only to petitions for relief and do not apply to offers in compromise submitted pursuant to 19 U.S.C. 1617 and 19 C.F.R. 161.53.

Consequently, the new mitigation guidelines concerning untimely petitions will impose a more stringent standard. Untimely petitions will be accepted or considered only if the petitioner is able to demonstrate the existence of extraordinary circumstances that prevented the petitioner from filing a timely petition or timely seeking a lawful extension of time in which to file a petition. What does that mean? The FPFO will exercise his or her discretion in determining whether circumstances existed so as to warrant CBP’s consideration or acceptance of a late petition.

Untimely Petitions will NO longer be Accepted

Subject to the permitted exceptions, no untimely petition will be accepted in any circumstance if it is filed:

  • a.         More than 180 days after the date of mailing of the notice of claim to the bond principal, or in the case of a surety, the date of mailing of the first demand on surety;
  • b.         After the petitioner has previously submitted a petition in the same case and/or been offered mitigation in the same case, and such mitigation amount was not paid within the prescribed period;
  • c          After the claim has been referred to Office of Chief Counsel for collection action;
  • d.         After the commencement of sanctioning action against the bond principal; or
  • e.         After the issuance of a notice to show cause against a surety.

CBP notes that (a) an untimely petition is not a supplemental petition described in 19 C.F.R. 172.41, (b) a supplemental petition must be timely filed following a decision on an original petition filed in accordance with the established regulatory time frames, (c) the rejection of an untimely petition does not constitute a “decision” for purposes of 19 C.F.R. 172.41, and (d) petitions that are filed untimely and not accepted for consideration will be rejected. A party responsible for a liquidated damages claim may submit an offer in compromise to CBP pursuant to 19 U.S.C. § 1617 and 19 C.F.R. 161.5.

The Exceptions…

However, untimely petitions for relief of liquidated damages claims issued for the late filing of an entry summary, the late payment of estimated duties (including under the periodic monthly statement test), the late payment of passenger processing fees or the late filing or late payment of reconciliation entries may be accepted without regard to the limitations expressed in paragraphs a and b above at any time prior to the circumstances described in paragraphs c through e.

New Mitigation Calculation for Late Petitions

CBP has also implemented a new calculation for mitigating liquidated damages for untimely petitions. In calculating the mitigated amount on a late petition, CBP will first determine the base amount (i.e., the amount of mitigation that would have been afforded on a timely petition). CBP will then determine the “additional mitigation amount” by multiplying the full assessed amount of the claim by 0.1 percent (.001) and then multiply by the number of days the petition is late (i.e., .001 times the number of days late times the full assessed claim amount.) The product will be the additional amount which will be added to the base amount to produce the mitigated amount applied to the untimely filed petition. In no case will the additional mitigated amount to be added to the base amount be less than $400. For example, a $100,000 liquidated damages claim for which a petition is filed 30 days late will be mitigated to the amount provided by the guidelines plus an additional amount calculated by the new formula (30 days late x .001 = .03 x 100,000 = $3,000 added charge.) 

Bottom line, assure you have an expert Customs attorney assisting you to fight for mitigation of Liquidated Damages claims, and file your Petitions TIMELY!

CBP

CBP Brings Seizure & Forfeiture Notices to the 21st Century

posted by Jennifer Diaz February 1, 2013 0 comments

Co Authored by Michael DeBiase.

U.S. Customs and Border Protection (“CBP”) has published a final rule (the “Rule”) providing CBP with the ability to publish seizure and forfeiture notices on the Department of Justice (“DOJ”) forfeiture website.  CBP believes that such notices will reach a broader range of the public, at less cost, than the current local print publications or customhouse postings.  

You know what?  CBP is right, and kudos to them for this added efficiency that goes into effect on February 28 of this year.     

Pursuant to the Rule, CBP will post all seizure and forfeiture notices for thirty (30) consecutive   days on the DOJ’s site.  Thereafter, CBP may still publish notice in print form when it deems such additional outreach appropriate.   

The beauty of the Rule is that it provides a vehicle by which both the government and the party interested in the seized goods to share in the greater efficiency, streamlined procedures, and reduction in costs offered by giving electronic notice.  This will also make it easier for the interested parties to assert claims for the seized property.

This is a change that needed to happen, and although the process and site will surely experience “growing pains”, the efficiency and cost savings should prove well worth it.

If you do receive a seizure notice, remember, you 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.

For a summary of the seizure process, review our blog "U.S. Customs Seized My Merchandise, Now What?"

We leave you with our top 3 tips:

  1. Perform Pre-Compliance PRIOR to importing merchandise into the U.S.  Assure the merchandise you will import is compliant with applicable laws/regulations.
     
  2. If CBP detains your products, contact a knowledgeable customs attorney or customs broker to actively demonstrate that there is no violation.  Getting the case resolved in the detention phase is essential.  Otherwise, the seizure case will be much more costly and timely.
     
  3. If CBP seizes your products, make sure your customs attorney knows the policies, procedures, and practices of CBP to effectively pursue the release of the merchandise.
Best PracticesIPR, Trademarks and Logos

Protecting Your Intellectual Property Internationally

posted by Jennifer Diaz January 12, 2013 0 comments

Do you sell products in multiple countries?  How are you assuring your intellectual property is protected?  Do you know about "Foreign Patent Applications" or "PCT’s"?  If not, you may not be adequately protecting your intellectual property abroad!

When you sell your product in multiple countries you are vulnerable to other companies stealing your idea and reproducing your intellectual property as their own.

How do you protect yourself?

To protect your business from being taken advantage of you may consider filing a foreign patent application. You may ask, what’s a foreign patent application?  It’s a request at a foreign patent office for the grant of a patent for the invention described and claimed by that application. An application typically consists of a description of the invention, together with official forms and correspondence relating to the application.

Foreign patent protection will prevent others from profiting from your idea abroad. Many countries allow you to claim priority from your U.S. application. For utility patents you can file with priority status within one year of your original filing date in the U.S. under the Paris Convention, or six months from your original filing date for design patent applications. A utility patent protects the functional aspects of an invention and can provide broad patent protection, making it difficult for a competing product to avoid patent infringement. A design patent will protect the appearance of a new product as long as it is the main feature.

Another option you have is to file a PCT (“Patent Cooperation Treaty”) patent application for up to two and a half years from the initial filing date of your U.S. patent application. The PCT must be filed within a year of your first filed priority application to keep your priority date or before your U.S. application is published. The benefit to filing a PCT patent application is it allows you additional time to file in the specific countries of your choice. In some cases, the results of the search report issued for the PCT may be used to speed up prosecution in individual foreign countries and result in lower prosecution costs using the PCT Patent Prosecution Highway Petition.

Becker & Poliakoff, P.A. is proud to announce we have merged with Litman Law and are now offering a full range of intellectual property services, including patent and trademark services, to our valued clients. To learn more about protecting your brand internationally, please contact us.