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Import delays by CBP sometimes don’t reflect rhyme or reason

By Carl Soller
Soller Law Intl

As an attorney who has practiced in the Customs and international transportation arena for more than 35 years, one issue that continuously arises is the definition of reasonable care, where it is found, and how is it implemented by Customs and Border Protection (CBP) or others enforcing the import rules of the United States. The requirements for importers, customs brokers, and others involved with the submission of information and documents using reasonable care is accepted by all and mandated by various rules and regulations.

Recently, CBP has issued a proposed rule relating to requirements for submission of documentation and information prior to entry of imported merchandise. Unfortunately, the power of attorney format which is being proposed conflicts with powers of attorney implemented by individual states. No statutory format mandated by CBP or other authority has been adopted by Congress. As a result there are no enforceable “informed compliance” requirements in a power of attorney which importers or their customs brokers are mandated to use. The current powers of attorney include many provisions which are not required by the Customs regulations; provisions relating to limitation of liability and other nonstandard power of attorney terms are often included in the current powers of attorney executed by the “importer of record.” The failure to require standard information in a power of attorney or requirements for customs brokers, as well as importers, confuses the entry process. Often times CBP relies upon its interpretation of what is required in the power of attorney currently, but fails to ensure that its requirements are supported by the provisions in the statutory language in Title 19 USC.

As an example of CBP’s failure to properly notify the importing public, many imports are substantially delayed release or even seized because of CBP’s inability to specify import requirements of certain ambiguous rules. Two examples of these ambiguities should suffice to demonstrate the consequence. Number one: In January 2016 CBP detained a shipment of plastic containers destined for distribution at major supermarket chains. The detention lasted for more than six months claiming that the merchandise was drug paraphernalia. Thereafter, CBP chose to make a seizure of that import but did not disclose why it believed that these “containers” were drug paraphernalia. In its submission, the importer disclosed the names of the customers to whom the merchandise is being delivered and its use. It is now December 2019 and CBP has yet to respond to the importer’s petition for release of the merchandise or denial of release. These circumstances demonstrates that CBP takes advantage of it’s unfettered ability to detain merchandise at the border without justifying reason for the detention or acting in a timely fashion to resolve the problem. The above description illustrates an abuse of discretion by CBP. This abuse is further exacerbated by reviewing prior imports of the same merchandise of the same company previously detained and seized but ultimately released with no explanation as to what constituted the initial violation and also with a determination that all storage charges are waived.

Unfortunately, there does not seem to be any potential repercussions to CBP personnel who fail to timely review the status and facts behind these types of seizures. Similarly, in December 2016, a seizure of ancient Chinese origin statues was made by CBP at its express consignment hub in Memphis. Because of the lack of expertise by Customs officials, the artifacts were held and not released. Supplemental arguments were presented to CBP but to no avail. It has become quite clear that CBP seized the merchandise merely because it was thought to be restricted and not allowed import into the United States. That is not the case. It is unfortunate that CBP fails to employ experts in the area of antiquities and related commodities which results in seizures that are illegally made and not legally justified. Unless the government is required to use judicial power in order to justify procedure there is no economic device or argument that forces CBP to release the goods being held without any cause. It is quite clear that CBP in these instances is using its broad seizure and detention powers for reasons not originally contemplated or approved. Under non Customs circumstances, the government requires probable cause to implement such a seizure. In the course of establishing these search and seizure rules, US Customs was exempted from the probable cause requirement. At that time it was decided that CBP not be forced to make a decision on the admissibility of merchandise at the time of import. It was determined that delaying release would result in an inappropriate delay in commerce. It was determined CBP could make these detentions or seizures after making an initial determination as to the admissibility of the imported item. Unfortunately, CBP currently has broadened its authority saying that it has the right and obligation to seize any item at the time of import for an amount of time that has since become unreasonable. This is once again a very difficult issue for importers to reverse, since our government fails to acknowledge its constant noncompliance with rules requiring the release of merchandise or a decision to seize based upon reason and legal support.

The above circumstances described are but two of the many determinations not made by CBP in a timely fashion. The rules relating to detention and seizures run afoul of CBP’s practical application on a daily basis. The regulations are clear that if a detention is improper CBP must release the merchandise to the importer within a 60-day period after detention. I would venture to say that the vast majority of detentions are not resolved within the 60-day period and in many instances the decision as to whether to seize the imports is not made until the importer demands release of these goods. CBP often decides to seize based upon the same faulty information that it has had since the initial detention and has gathered no further support.

Importers are often left with a Hobson’s choice that is often really no choice at all. A seizure of a shipment of wearing apparel worth a minimal amount of dollars is often not worth fighting because of the cost of the legal costs in resisting a seizure determination made by the government. To engage an attorney to oppose a case in the US courts is costly. The cases are also time-consuming as a result of the complexity of the law relating to CBP’s seizures and the relatively small number of cases to which the Court has been exposed. This results in additional time being spent on legal analysis.

Currently the lack of certainty of the many government-imposed import tariffs claim to be effectuated as security measures and result in similar economic hardships for many of the US importers and manufacturers who are subject to the additional tariffs. Clients and potential clients often call to discuss whether additional tariffs will be implemented for their goods. Since there are no guidelines as to whether additional tariffs will be implemented and if implemented will continue, or whether sometime in the future refunds of the additional tariffs will be made, the economic analysis is always impossible to arrive at accurately. In order to avoid any of these pitfalls in terms of detention, seizure, or penalty duties imposed for security reasons, you are forced to go to court in an attempt to overturn what appears to be improper and often unsupported by law.

Many/most businesses avoid the high court costs, which is made worse by the inability to recover legal fees.

Carl R. Soller, Customs, International Cargo and Regulatory Compliance Attorney is counsel to companies engaged in all elements of the import/export supply chain and a recognized expert in his practice areas.  He and his firm concentrate their International, Regulatory and Cargo Practice in all business and regulatory matters on a nationwide basis.  He offers advice on supply chain security and its related Government Regulations to the Cargo Community as well as advice and a vast range of assistance to importers and exporters of all kinds of consumer goods.  He can be reached at (516) 812-6650 or (212) 643-6650 or

 

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