With all of the complexities involved in the import process, even customs brokers can make mistakes such as by providing the wrong tariff classification of the imported item to U.S. Customs and Border Protection . A customs broker who makes such a mistake may become the subject of an investigation by U.S. Customs which ultimately results in a $30,000 penalty against the broker.
Customs brokers are often the best choice for importers to take care of all the formalities in clearing imported cargo through U.S. Customs, however, a customs broker who makes a mistake when declaring certain information to U.S. Customs may put the importer at risk of being accused of fraud by U.S. Customs in violation of 19 U.S.C. 1592. Increasingly often, the customs broker may itself be investigated by U.S. Customs for failing to exercise responsible supervision and control in violation of 19 U.S.C. 1641.
It is standard practice for U.S. Customs to demand that the broker appear before the Broker Compliance Unit of U.S. Customs at the local port of entry to answer questions about the mistakes discovered by Customs regarding a particular importer or set of entries. The broker is usually directed to bring with him/her certain documents for review by U.S. Customs at the meeting. The broker may be accompanied by an attorney during this informal stage of the investigation. The customer of the customs broker, the importer, is generally not made aware by U.S. Customs that its customs broker has been summoned to a meeting with Customs for a counseling session.
If the U.S. Customs personnel are not satisfied with the answers by the broker at the meeting, U.S. Customs will issue a Notice of Pre-Penalty against the broker. The penalty may be up to $30,000. The broker will have 30 days to file a written petition, and request an oral presentation. A lawyer who is an expert in customs law and procedure should be involved to advise and represent the broker to attempt to get the penalty canceled or mitigated. The guidelines of what to say in such a Petition are set forth in an Appendix C to Part 171 of the Customs Regulations. U.S. Customs personnel must consider a certain set of factors before determining that the customs broker failed to exercise reasonable care and “responsible supervision and control”. Every customs broker should read, the U.S. Court of International Trade decision issued on January 28, 2010 in the case of United States v. UPS Customhouse Brokerage, Inc.. for a better understanding of both a customs brokers’ and U.S. Customs’ rights and responsibilities.