Tag

notice

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.
Department of Homeland SecuritySeizures

Notice of Detention of Merchandise by U.S. Customs and Border Protection

posted by Jennifer Diaz February 24, 2011 4 Comments

U.S. Customs and Border Protection (CBP) issued a February 22, 2011 60-Day Notice and Request for Comments regarding its use of a "Notice of Detention".  I know, a lot of you are saying to yourselves, "When did CBP starting using Notices of Detention," and my response to you is "That’s a darn good question!"

The law, 19 U.S.C. 1499 and 19 CFR 151.16, allows CBP officers at the border to stop and search persons for merchandise.  If the CBP officer discovers something suspicious, and takes it from you, then it has been "detained".  In exchange, the CBP officer is required to send to the importer or passenger a Notice of Detention form no later than 5 business days from the date of the examination, stating that: (1) the merchandise has been detained, (2) the reason for the detention, and (3) the anticipated length of the detention. 

That all sounds reasonable, but the problem is that the legal requirement is often ignored by CBP.  Often, a Notice of Detention is never issued by CBP to the importer, or is issued late or does not state the reason for the detained merchandise.  I  have seen a few hundred Notices of Detention over the past 21 years as a customs lawyer, but have never seen one that described "the anticipated length of detention."

The Request for Comments asks the public for "ways to enhance the quality, utility, and clarity of the information to be collected."  I have a way to enhance the quality of the CBP Notice of Detention – follow the law and issue it every time, on time, and accurately.   For those who want to respond formally to CBP, click on the link for the address to address comments before April 25, 2011

U.S.Customs

Why is U.S. Customs Issuing So Many Requests for Information (CBP Form 28)?

posted by Jennifer Diaz November 7, 2010 2 Comments

WARNING!  U.S. Customs and Border Protection (CBP) has issued a record number of CBP Form 28s (Request for Information) and CBP Form 29s (Notice of Action) so far this year.  Import Specialists of CBP at ports of entry all over the United States are sending out these forms to importers demanding responses.  If the responses are not satisfactory, the CBP officer will demand payment of customs duties. What an importer states in its response to CBP may result in CBP taking no further action, assessing customs duties, issuing a monetary penalty notice, or even referring the case for criminal prosecution. 

A CBP Form 28 is entitled "Request for Information", and it demands that a response be submitted by the importer of record, in writing to CBP, within 30 days of the date of the Request.  The response is typically signed and dated by a company official, usually a corporate officer or manager.  Moreover, the company employee who signs the form certifies that the statements made by the company are true and correct.  The person who signs the CBP form is reminded that false statements on the form to CBP may result in criminal prosecution against that person.

CBP may demand records and assess penalties, demand payment of duties, or take other legal action up to 5 years after an entry of a shipment is made in the United States, according to 19 U.S.C. 1509, 19 U.S.C. 1621, and 19 CFR Part 151.  A Request for Information form may be the first step for CBP to discover violations committed by an importer.  Typically, the CBP officer demands proof that a certain product ((often a textile) qualified for the free trade agreement identified by the importer when it brought the shipment into the United States.  Another typical demand from CBP is an explanation from the importer why a shipment of a certain item from a certain country (often China) should not be subject to anti-dumping duties.  The most common problem remains that CBP believes that an importer failed to declare the proper tariff classification on the imported product, thereby attempting to avoid paying higher customs duties.

Why CBP is now issuing a record number of CBP Form 28s has not been disclosed to the public. Maybe it is the Federal Government’s misguided effort to collect additional revenue, or maybe CBP discovered that importers are not properly declaring shipments as accurately as they did in prior years.  Whatever the reason, importers and customs brokers must be careful when drafting and filing a written response to CBP. 

I am regularly hired by importers or customs brokers only after CBP has taken action against the importer or broker which resulted from not carefully responding to a CBP Form 28.  Rather than getting hired after ‘the horse is out of the barn,’ it sure would be easier for a customs attorney like me to get hired to draft the response to the CBP Request for Information.

FDA IssuesFood

Food Facility Registration Mandatory With The U.S. FDA

posted by Jennifer Diaz 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.