Tag: customs lawyer

Customs Country of Origin & Substantial Transformation

Posted by Jason P. Wapiennik on May 28, 2014

Determining country of origin for U.S. Customs marking purposes can at times be easy but other times it can be very difficult. This depends largely on the number of countries involved and the processes the merchandise undergoes in those countries. We have previously discussed how to properly mark country of origin on imported merchandise in another article (READ IT HERE).

In this article, we will try to briefly explain how country of origin is determined for customs marking purposes for merchandise imported from countries that the U.S. does not have a special trade agreement with. ((Different laws often apply for determining country of origin when there is a free trade agreement in place, as of this writing, the U.S. has free trade agreements with Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Jordan, Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, and Singapore.)) At the time of posting this article, then, these rules for determining country of origin is appropriate for countries such as China, Germany, Switzerland, England, Italy, and some others where there is no special, overriding, trade agreement.

How is country of origin determined?

For customs purposes, country of origin is the country of manufacture, production, or growth of any article. If only one country is involved in the production, manufacture, or growth of the article, that is the country of origin.

However, for articles that are manufactured or produced with materials from more than one country, or which undergo further production or manufacture in more than one country, the country of origin is the country where the article last underwent a “substantial transformation.” Substantial transformation is defined as the process whereby the article is turned into a new and different article of commerce, with a different and distinct name, character, and use from the article as it was previously. ((19 CFR 134.1(d); In United States v. Gibson-Thomsen Co., 2 Cust. Ct. 172 (1938); U.S. Rules of Origin, CBP (2004), p. 9.))

Again, these rules are only for countries that the U.S. does not have a special trade agreement with. So, for example, there are different country of origin marking rules for NAFTA.

When is merchandise “substantially transformed” for country of origin purposes?

What constitutes a “substantial transformation” for any particular article depends on the specific type and amount of production and manufacturing that the article undergoes. For this reason, no general guideline beyond creating a “new and different article of commerce, with a different and distinct name, character, and use” is possible.

For that reason, each article’s country of origin must be determined on a case-by-case basis. If it is difficult to determine country of origin for a particular article, it might be necessary to get formal guidance from customs through a request for a prospective ruling, which usually results in customs issuing a formal ruling letter that they are obliged to honor. It can also be helpful to review previously issued ruling letters to find similar cases, and get a sense for how the law is applied to a particular situation. This should only be done by a customs lawyer or an experienced broker, who understands the law and the exact phases of production of the imported merchandise.

What happens if imported merchandise has an incorrect country of origin marking?

If country of origin marking is wrong, Customs will deny release of imported products, or if already released from Customs custody, they will be required to be returned via redelivery notice. Customs may impose and collect an additional duty of 10% of the article’s value before allowing release (“marking duties”), an amount in addition to any other duties normally owed, if any. Before release, Customs will require that the article be marked with the correct country of origin and until marked duties paid.

Customs Attorney Consultation for Country of Origin and Marking Requirements

If you have a question about proper country of origin marking, identifying the actual country of origin, otherwise determining how to comply with the Customs rules concerning proper country of origin marking for imported merchandise, or if your competitor is not marking or mis-marking country of origin on their products, you should contact our office at 734-855-4999 or send us a message on our contact page. We can always help.

Counterfeit DVD Seizure by Philly Customs

Posted by Jason P. Wapiennik on May 23, 2014

Customs recently seized some counterfeit merchandise being imported through the port of Philadelphia. Yesterday, we began the first part of our series on what happens when a person or business imports counterfeit merchandise into the United States (please read the article, but I’ll give you a hint: it’s not good). As this customs news release points out, the reasons why customs seizes counterfeit merchandise is often more than just to protect the U.S. trademark holder, but because counterfeit products are often of lower quality and could cause serious harm to the consumers who use them. Read the article below with my own notes written in bold for a play-by-play of how the process of this seizure of counterfeit merchandise plays out.

PHILADELPHIA – The unofficial start to summer arrives in about two weeks, and as is customary, people are feverishly working on sculpting and toning their summer physique. Unfortunately, disreputable organizations know this too, and they prey on that motivation to sell under priced and potentially dangerous counterfeit exercise equipment and technology.

U.S. Customs and Border Protection (CBP) officers in Philadelphia recently seized 36 boxes of counterfeit BeachBody Focus T25 DVDs, and 12 boxes of counterfeit BeachBody P90X3 DVDs, worth an estimated $5,800 MSRP. [NOTE: As we will see in Part 2 of our series on counterfeit trademark customs seizures, MSRP is important when it comes to calculating the penalty the customs will issue to the importer].

The counterfeit DVDs arrived from Hong Kong in two separate shipments and were destined for two addresses in Philadelphia. CBP officers examined the shipments and detained them April 1 to determine their authenticity with the trademark holder, BeachBody. [NOTE: Customs contacts the trademark holder prior to formally detaining the merchandise to determine if the product is truly a counterfeit.]
Philadelphia CBP seized two parcels of BeachBody exercise DVS April 25, 2014.CBP simultaneously worked with the importer and broker to obtain specific authorization from the trademark holder permitting it to import BeachBody products. Neither was able to provide an authorization letter from BeachBody. [NOTE: If the importer has the consent of the trademark holder to import counterfeit merchandise, or if it can obtain permission from the trademark holder prior to forfeiture, it’s possible to get the counterfeits released from seizure].

BeachBody confirmed that the products were counterfeit. CBP seized both shipments April 25 for a violation of 19 USC 1526, Merchandise Bearing and American Trademark. [NOTE: The importer will receive a notice of seizure by mail, with the opportunity to respond by, among other things, filing a petition for remission].

“U.S. Customs and Border Protection urges consumers to be especially vigilant against purchasing suspected counterfeit technology products that may have a hidden, embedded virus that can steal your personal information, wipe your hard drive clean, or destroy your electronic devices,” said Susan Stranieri, CBP Port Director for the Area Port of Philadelphia. “If the price seems too good to be true, it likely is a counterfeit or pirated item, and is a potentially dangerous product.”

The counterfeit DVDs will be destroyed.

Protecting intellectual property rights (IPR) remains a CBP priority trade issue.

CBP protects businesses and consumers every day through an aggressive IPR enforcement program. CBP targets and seizes imports of counterfeit and pirated goods, and enforces exclusion orders on patent-infringing and other IPR violative goods.

The People’s Republic of China, where these DVDs were manufactured, remains the primary source economy for counterfeit and pirated goods seized by CBP and its primary IPR partner, Immigration and Customs Enforcement (ICE). In Fiscal Year 2013, 68 percent of all IPR seizures were for goods manufactured in China. The MSRP of those counterfeit goods was valued at approximately $1.1 billion.

In addition to China, CBP and ICE seized counterfeit merchandise from 73 additional economies during FY 2013, including Hong Kong, India, Korea, Singapore, and Vietnam.

To view counterfeit seizure statistics from 2013, visit CBP’s 2013 IPR enforcement results and CBP’s IPR enforcement for more information on this priority trade enforcement issue.

Inspecting international parcels for dangerous and illicit products remains a CBP enforcement priority.

CBP routinely conducts random inspections operations on passengers and air cargo searching for narcotics, currency, weapons and other prohibited or illicit products.

If you have had money or merchandise seized by customs because they allege it is counterfeit and contains trademark violations, call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist petitions for customs seizures nationwide.

Customs Currency Seizure Assisted by K9

Posted by Jason P. Wapiennik on April 28, 2014

Customs seized currency at Dulles airport for failure to file a currency report for a man who repeatedly reported transporting only $8,000, but he was instead found with more than $20,000. Below is a picture from the customs news release that shows, apparently, the offending currency and it’s new owner, a German Shepherd. Alright, the German Shepherd will not become the new owner, as the story correctly points out anyone who has had their currency seized by customs has the right, among others, to petition to have the currency returned to them provided that they can establish a legitimate source for the money and show that it had a legitimate intended use. Here’s the story from Customs:

STERLING, Va. — U.S. Customs and Border Protection (CBP) Office of Field Operations (OFO) at Washington Dulles International Airport seized $24,789 from a U.S. citizen Monday for violating federal currency reporting regulations.

The man, who arrived on a flight from Qatar, declared possessing only $8,000. While proceeding to the exit from the federal inspection area a CBP K9 enforcement officer led his partner, CBP currency detection K9 “Nicky,” over to sniff the traveler’s luggage. Nicky alerted and the officer asked the man how much money he was carrying. He declared $8,000. The officer then referred the traveler for a secondary inspection.

In secondary the man again declared possessing $8,000 to CBP officers. While examining the passenger’s luggage, CBP officers discovered an envelope containing $24,789. CBP officers seized the $24,789 and advised the traveler how to petition for the return of his currency.

CBP K9 ‘Nicky’ detected $24k in unreported currency a traveler concealed at Washington Dulles International Airport April 21, 2014.There is no limit to how much currency travelers can import or export; however federal law requires travelers to report to CBP amounts exceeding $10,000 in monetary instruments, which includes foreign currency.

“Travelers who refuse to comply with federal currency reporting requirements run the risk of having their currency seized, and may potentially face criminal charges,” said Frances B. Garcia, Acting CBP Port Director for the Port of Washington. “The traveler was given the opportunity to truthfully report his currency. The easiest way to hold on to your money is to report it.”

Like other law enforcement, Customs’ uses dogs to enhance it’s search capabilities at the border and in airports, and in this case, the dog was able to sniff out the currency, most likely because it contained trace amounts of narcotics, as I am told most U.S. currency does.

If you have had money seized by customs call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist with cash seized by customs nationwide, including Detroit, Chicago, Atlanta, New York, Los Angeles, Las Vegas, and Orlando.

Please read these other articles from our customs law blog:

CBP at JFK Seizes Cocaine in Meat

Posted by Jason P. Wapiennik on April 14, 2014

Customs seized over 7lbs of cocaine from a man who apparently tried to smuggle it into the United States by hiding it in frozen chunks of meat from Trinidad. If CBP published statistics on stupid smuggling attempts that are bound to fail, this would go down as one of the stupidest smuggling attempts of the year.

Why is it so stupid? Because it is basically impossible to import meat into the United States without getting advance permission from either the FDA, USDA, or both — more on those restrictions HERE. Put simply, the problem is that the smuggler basically tried to hide something illegal in something that was illegal; typical smuggling attempts have people hiding illegal merchandise in or around perfectly legal merchandise.

Not only was this poorly planned for that reason, but who could ever doubt that a dog – trained for smelling both the presence of meat and narcotics – would not alert to cocaine wrapped in juicy chunks of meat? I mean, take a look at the picture below.

JAMAICA, N.Y. — An arriving passenger at John F. Kennedy International Airport had a different kind of ‘beef’ when encountered by U.S. Customs and Border Protection Officers.Meat seized by CBP also contained cocaine

On March 20, CBP officers stopped Mr. Yudishtir Maharaj who was arriving on a flight from Port of Spain, Trinidad. During the course of the inspection CBP officers discovered three large
packages of frozen meat within his luggage. When probed, the frozen packages of meat produced a white powder that tested positive for cocaine. Mr. Maharaj was arrested for the importation of a controlled substance and was turned over to Homeland Security Investigations. The total weight of cocaine seized is approximately 7.35 lbs.

“This latest seizure demonstrates the vigilance of our CBP officers, and their excellence in detecting those who would try to smuggle these illegal substances,” said Robert E. Perez, Director, Field Operations New York.

Mr. Maharaj now faces federal narcotics smuggling charges and will be prosecuted by the U.S. Attorney’s Office in the U.S. Eastern District Court of New York.

All defendants are considered innocent until proven guilty.

I do not represent narcotics smugglers, but a lot of innocent people and people acting in good faith or from a position of ignorance get their property seized by customs all the time. If you have had merchandise, property, orcash seized by customs and are contemplating what to do next, please make use of the other information available on this website or call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. We are able to assist with cash seized by customs around the country, including Detroit, Chicago, Cleveland, New York, and many other places, and not just locally.

U.S. Customs Counterfeit Seizure & Penalty; Fake Purses

Posted by Jason P. Wapiennik on April 7, 2014 with 1 Comment

KFox14’s website has a recent story about a a counterfeit purse seizure by customs with a value of around $12,000. We have previously written articles on trademark infringement gray market goods and trademark infringement, which can help you understand the process more.

The story AVAILABLE HERE on KFox14’s website, in part, says:

In January, 39 Michael Kors purses suspected of being counterfeit were seized at an El Paso port of entry. The purses were part of an international shipment from Hong Kong that was selected for inspection. Officers who were examining the shipment identified the suspect bags and they were turned over to members of the CBP Intellectual Property Branch for further review, officials said.

[ . . . ]

The purses were found to be of poor quality compared to what the brand was known for despite having nearly identical markings, officials said. A notice of seizure was given to the consignee of the shipment on March 10. The value of the seized handbags was estimated at $12,285.

Importing counterfeit items into the United States is a very serious matter. First, it is very likely that after seizure the property will be forfeited and destroyed by the U.S. government if, in fact, they are counterfeit. Once forfeiture is perfected, the person who caused the importation will probably get a notice of penalty from U.S. Custom & Border Protection in the mail for a minimum of $12,285, or the equivalent of the value of the products if they were real. That is what the law says.

The person will have a chance to respond to customs’ notice of penalty with the Fines, Penalties, and Forfeitures office by filing a petition for mitigation and ask customs to reduce the penalty based on the presence of certain mitigating factors that customs particularly looks for. Great Lakes Customs Law has been very successful in getting these kinds of penalties reduced and, sometimes, even eliminated entirely. If the person fails to pay the penalty, the government bring a lawsuit against them in federal district court to recover the penalty in the form of a judgment, after which point the government can lien property, garnish bank accounts, and seize property.

If you have had money or merchandise seized by customs call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. Once your merchandise is seized, Customs may issue a penalty for the violation of law itself. If you have received a notice of penalty from U.S. Customs call our office immediately to discuss the possibility of filing a petition to reduce the penalty amount.

We are able to assist petitions and in seizures by customs nationwide.

International Parcel Seizures by Philly CBP

Posted by Jason P. Wapiennik on March 18, 2014

I am sharing this story with readers of my customs law blog as it dovetails well with guidance recently provided to customs about customs liability for internet purchases. Although the seizures in questions below are certainly more of an intentional variety, but are nevertheless instructive because the parcel inspection and seizure process by customs is the same whether the goods are prohibited, restricted, or if there are mistakes made in the import process. In other words, importing steroids or illict street drugs is dramatically different from importing something that you are unaware is not properly marked with country of origin, or for which the shipper provided a incorrect value on the commercial invoice used during the customs declaration process.

On to the story from customs:

PHILADELPHIA – One of U.S. Customs and Border Protection’s lesser known enforcement priorities is examining incoming international parcels to hunt for a wide variety of prohibited and illicit products, such as weapons, narcotics, currency, insects and food. Hunting was good this past week.

Customs and Border Protection (CBP) officers at the international express courier facility near Philadelphia International Airport recorded six khat seizures totaling about 150 pounds, 140 tablets that contained codeine, and 16 vials of steroids.

The parcels were destined to Everett, Mass., Riverwoods, Skokie and West Dundee in Illinois, Minneapolis and Rochester in Minnesota, and Cromwell, Conn.

“We know that U.S. consumers will attempt to purchase products they know to be illicit or illegal from overseas sources through the internet. Our best advice to them is caveat emptor, buyer beware,” said Tarance Drafts, acting CBP Port Director for the Port of Philadelphia. “Inspecting international parcels for dangerous and illicit products remains a Customs and Border Protection enforcement priority. There’s a great chance we’ll get our hands on your purchase before you do.”

The seizures started February 27 when CBP officers intercepted a parcel manifested as “Adidas junior bags” destined for Cromwell, Conn. Officers x-rayed the parcel and detected an anomaly that proved to be 24 pounds, 4 ounces of khat.

CBP officers then made two khat seizures Wednesday, one weighed 22 pounds, 3 ounces and was in a parcel manifested as “document procedures” destined for Skokie, Ill. The second parcel, manifested as “reports,” contained 15 pounds, 14 ounces of khat destined for West Dundee, Ill.

CBP officers also seized the codeine tablets Wednesday in a parcel manifested as “samples” destined for Rochester, Minn. The tablets were a product identified as Solpadeine, which is an over the counter product in Europe, but the codeine makes it a Schedule III drug in the U.S.

Thursday seemed like Groundhog Day, as CBP officers made two additional khat seizures. The first, 23 pounds, 9 ounces, was in a parcel manifested as “mobile phone accessories” and destined for Minneapolis. The second, 16 pounds, 12 ounces, was in a parcel manifested as “project development group report” and destined for Skokie, Ill.

The final parcel Thursday contained 10 vials of 10 ml each of Decatest 350 and six vials of 10 ml each of Megabol 275. The parcel was manifested as “Non Documents Amino Methyl Propanal” and destined for Everett, Mass.

In the largest seizure this week, CBP officers seized 46 pounds, 15 ounces of khat today that arrived in a parcel manifested as “Decorative Artistic Handicrafts” and destined for Riverwoods, Ill.

The 150 combined pounds of khat has a street value of about $45,000.

Khat is a green, leafy plant typically grown in the Arabian Peninsula and chewed for its stimulant effect.

The Drug Enforcement Administration classifies khat as a schedule 1 narcotic – the most restrictive category used by the DEA – when the leaves are freshly picked. Its principal components, cathine and cathinone, are considered controlled substances in the United States. Please see the DEA Khat Fact Sheet.

The World Health Organization classified khat as a drug of abuse in 1980. It is chewed for its stimulant effect and retains its potency for up to 48 hours after being harvested.

CBP routinely conducts random inspections operations on passengers and air cargo searching for narcotics, currency, weapons and other prohibited or illicit products as part of its border security mission.

The individuals to who these seized shipments were destined will receive a notice of seizure from customs explaining the reasons for the seizure; they will then be asked to respond to the notice of seizure by affirmatively abandoning the property, petition for its return, and a few other choices. No matter how the notice of seizure is responded to, it’s possible that in addition to criminal charges, those connected with the importation of these items will also be facing a civil penalty for the unlawful importation.

If you have had merchandise or money seized by customs call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. Once your merchandise is seized, Customs may issue a penalty for the violation of law itself. If you have received a notice of penalty from U.S. Customs call our office immediately to discuss the possibility of filing a petition to reduce the penalty amount. We are able to assist petitions and in seizures by customs nationwide, including Detroit, Cleveland, Chicago, Buffalo, New York, and Los Angeles.

Customs Liability for Internet Purchases

Posted by Jason P. Wapiennik on February 6, 2014 with 3 Comments

In addition to helping importers before U.S. Customs & Border Protection that are businesses, whether large or small, we also represent the “little guy” when they find themselves faced with a notice or letter from U.S. Customs informing them that it appears they have somehow violated the law. Usually, these people — often nascent entrepreneurs — are importing limited quantities of a product from overseas to make a quick buck or try their hand at a new business, and other times they are just individuals buying something for personal use.

These unsuspecting people get their goods seized by customs or get stuck with a demand to pay a penalty, for a host of customs violations, such as counterf eit/trademark infringement or incorrect country of origin marking. Then they must answer to the Fines, Penalties & Forfeitures officer and navigate a series complex sea of options and choices, without knowing what the effect in terms of money, cost of seized and forfeited goods, and time that their decisions will have. They usually do not have patience for those ignorant of the law and terse phone calls with them will do little to help you understand what is happening to you and your imports.

Lo, and behold: customs has published guidance for internet purchases for the public at large that explains, in simple terms, what the responsibilities are of a buyer purchasing from an online seller. The whole page is a must-read for anyone who is buying a product from overseas because, as it states:

It does not matter whether you bought the item from an established business or from an individual selling items in an on-line auction. If merchandise, used or new, is imported into the United States, it must clear CBP and may be subject to the payment of duty as well as to whatever rules and regulations govern the importation of that particular product into the United States.

Go have a look at the article “Internet Purchases“. It provides a checklist for internet purchasers to go through when ordering from an online seller, the declaration process, shipping methods, restricted merchandise, prohibited merchandise, and quotas. Of course, the information available can still be confusing, and should not replace the advice of an experienced customs lawyer. If you have had money or merchandise seized by customs call our office at (734) 855-4999 to speak to a customs lawyer, or e-mail us through our contact page. Once your merchandise is seized, Customs may issue a penalty for the violation of law itself. If you have received a notice of penalty from U.S. Customs call our office immediately to discuss the possibility of filing a petition to reduce the penalty amount.

We are able to assist petitions and in seizures by customs nationwide, including Detroit, Cleveland, Chicago, Buffalo, New York, and Los Angeles.

Country of Origin Marking Requirements

Posted by Jason P. Wapiennik on March 28, 2013 with 1 Comment

In a global economy where a person can find products from every corner of the globe consumers are sometimes inclined to make their purchasing decisions based on the country of origin (meaning where the product is made and where it is imported from). Americans, for sure, like to base their decision of whether to buy certain products based on country of origin. We have all probably, at one time or another, been told to buy American, to look for a made in U.S.A. label, or not to buy anything from China or some other country. My grandpa, who grew up during World War II, wouldn’t buy anything made in Japan or Germany, and for a time during the Iraq War there was a call among some to boycott French products for their unwillingness to join the U.S. efforts.

This sentiment is nothing new, and in fact, is the reason that all imports into the U.S. must be marked with the country of origin. Recognizing this tendency, Congress

Made in China Image — Country of Origin Mark

authored 19 U.S.C. § 1304 in order to specify the various rules and exceptions to the country of origin marking requirement, and set out penalties for failing to mark and/or properly identify the country of origin of imported products.

Marking Requirements for Country of Origin

This law plainly states that every foreign products or article entering the U.S. must bear a mark indicating the English name of its country of origin, unless the article fits into a listed exception, discussed below. The country of origin mark itself must meet two qualifications, simply stated:

First, it must be conspicuously located on the article;
Second, it must be legible, indelible, and permanent;

Id. at §1304(a). The reason for these requirements to enable the “ultimate purchaser” (i.e., the person who will receive the article in its imported form 19 CFR § 134.1(d)) to readily identify the article’s country of origin in case that will affect his decision to buy or not buy a particular product. Customs can require that certain articles be marked in a specific manner, without exception, by stamping, cast-mold lettering, etching, engraving, or cloth labels (e.g., coffee, tea, spices, manholes, pipes, fittings, etc.). 19 CFR § 134.42.

Interestingly, the country of origin marking requirement means if you cannot find a country of origin marking on a product or its container, you may presume that it was made in the United States, because there is no marking requirement under this law for non-imported products (it could also mean that the country of origin marks were intentionally destroyed, removed, or concealed, or that Customs failed to intercept violative country of origin marking).

Exceptions to the Country of Origin Marking Requirements

Exceptions to the country of origin marking requirement typically arise when marking an article is extremely difficult or purposeless to mark. For example, the statute can exempt particular articles which are physically incapable of being marked, cannot be marked prior to their shipment to the U.S., or are imported for the private use of the importer and not intended for sale in the U.S. Id. at §1304(a)(3). Even in those cases, however, while marking the article itself may be excepted, the law still requires the importer to mark the country of origin on the container of the article, like the packaging it comes in. Id. at §1304(b).

Exemptions could be available in a variety of circumstances. For example, marking a product could be economically prohibitive to the article’s importation or injure the article, or the origin could be apparent without explicitly marking the article.

How U.S. Customs Treats Mismarked or Unmarked Imports

In the absence of the required country of origin mark on imported articles, Customs will ensure that unmarked imported products are denied entry in commerce, or if already released from Customs custody, they will be required to be returned via redelivery notice. Customs may impose and collect an additional duty of 10% of the article’s value before allowing release, an amount in addition to any other duties normally owed, if any. Id. at §1304(i). Before release, Customs will require that the article be marked with the correct country of origin and until marked duties paid. Id. at §1304(j).

What to do When U.S. Customs Takes Issue with Country of Origin and its Marking

If you have a question about proper country of origin marking, identifying the actual country of origin, and otherwise determining how to comply with the Customs rules concerning proper country of origin marking for imported products, you should consult with an attorney experienced in the customs and related laws. It is possible to get a prospective ruling from U.S. Customs product which you intend to import, and an attorney can arguing for a particular manner of country of origin marking. Contact out office today to discuss your problem and your options.

Feel free to use this article to supplement your own knowledge, but do not let it serve as a substitute for legal counsel familiar with the various restrictions and exceptions of the law.

Calculation of Customs penalties for 1592 violations

Posted by Jason P. Wapiennik on February 25, 2013 with 1 Comment

In a previous article we provided a general overview of U.S. Customs and Border Protection penalties for violations of 19 USC § 1592, and therefore we now address the potential cost of a penalty in terms of dollar amounts and how those amounts are calculated.

In addition to the required payment of any unpaid or underpaid duties (i.e., taxes or tariffs) as a result of a violation of § 1592, a violator will also be responsible for a penalty, which serves the purpose of deterrence and, to a lesser extent, acts as compensation for the costs of enforcement. § 1592(c). Get ready for the bad news. The penalty amounts range depending, first and foremost, on the level of culpability, as follows:

Negligence: Twice (2x) the loss of duties, taxes, and fees or the domestic value of the goods, whichever is less; or, if the violation caused no duty loss then 20% of the dutiable value;
Gross Negligence: Four times (4x) the loss of duties, taxes, and fees or the domestic value of the goods, whichever is less; or, if the violation caused no duty loss then 40% of the dutiable value of the goods;
Fraud: An amount not greater than domestic value (1x) of the goods.

Customs can set the penalty anywhere it determines appropriate, but the penalty cannot exceed the maximum amount above for any degree of culpability.

Now get ready for the worse news: Customs can increase a penalty, so long as it does not exceed the legal maximum, when it finds the presence of aggravating factors, such as:

Obstructing an investigation or audit;
Withholding evidence;
Providing misleading information;
Prior violations;
Illegal transshipment such that the country of origin has been falsified;
Evidence of a motive to admit inadmissible merchandise;
Failure to comply with a demand for records or a summons;

But, there is some good news in the midst of all the bad. Even when aggravating factors are present, these penalties can be reduced by Customs when it finds the presence of mitigating factors, which include:

Contributory customs error, such as receiving misleading or wrong advice from Customs;
Cooperating with Customs in an extraordinary fashion, beyond that normally for a penalty action;
Taking immediate corrective actions, such as hiring an attorney, payment of the actual loss of duty prior the penalty notice, correction of organization or procedural defects, instituting a compliance program, etc.;
Inexperience in importing;
Prior good record of importations;
Inability to pay, as shown by tax return and financial statements;
Customs knew of violations, but failed to inform the violator without justification, and there is no criminal investigation.

These above-listed factors are identified by Customs as mitigating factors at the administrative level (that is, when Customs is deciding the penalty amount). Of course, if you disagree with the final decision on the penalty amount from Customs you will have the right to have a Court decide the matter. The court determines the penalties according to its own set of considerations (which will be the subject of future articles).

If you are issued a pre-penalty notice, penalty notice, or even if you are in the midst of a penalty case with Customs or before the Court of International Trade, you really should have the benefit of an attorney experienced in the customs laws. Beyond the mere arguing for and against the imposition of a penalty, or the presence and absence of aggravating and mitigating factors, there are technical arguments as well as large and well-developed body of case law about when penalties are allowed, and what amount is appropriate. You may have a complete defense to the imposition of penalties. If you are in such a situation, please make use of our experience and contact us today by calling (734) 855-4999 orby filling out our contact form.