Friday, November 3, 2017

United States Customs and Border Protection (CBP) Enforcement Priorities

Peter Quinter, Shareholder
Customs & International Trade 
(305) 416-6960

Here is what I have noticed for 2017. 

This is a preview of my annual Top 10 List video next month.

1.  CBP is conducting a record number of importer audits, resulting in significant penalties.

2.  Importers from China better check twice to be absolutely sure their imported products are not subject to antidumping or countervailing duties, but if they are, to be sure it is properly declared to U.S. Customs and Border Protection (CBP) and any extra duties are paid timely to CBP.

3.  CPSC (Consumer Product Safety Commission) now has representatives at all ports of entry, and is actively selecting children's and other consumer products for compliance. There are lots of new rules applicable to toys so beware.

4.  Adulterated food and misbranded food products are a common occurrence, and FDA is using its new regulatory authority to find them, seize them, destroy them, refuse them entry into the United States, conduct recalls, and assess penalties against companies involved in the international importation.

5.  Foreign Trade Zones and customs bonded warehouses are suspected by Homeland Security Investigations of being used to smuggle everything from drugs to counterfeit products.

6.  Bureau of Industry and Security (BIS) Special Agents are conducting a record number of 'educational visits' to exporters. What you say can be used against you.

All in all, Customs and International Trade lawyers have had a very busy year, and I have not even talked about the Trump Administration disconnect with China, Iran, and Korea yet!


Friday, June 23, 2017

A Primer on U.S. Customs and Border Protection's Global Entry Program

A Primer on U.S. Customs' Global Entry Program

By Peter Quinter, GrayRobinson, Miami
Mobile 954 270-1864

The U.S. Department of Homeland Security and particularly its U.S. Customs and Border Protection (CBP) have a "Trusted Traveler" program called "Global Entry." See Most likely, as international lawyers, many of us are already members of Global Entry, and receive expedited international traveler clearance by CBP upon arrival to the United States. Plus, we get the extra advantage of automatic membership in TSA-Pre. There are now more than two million members in the Global Entry program.
Unfortunately, the reality for many applicants to Global Entry is that their applications are denied, and current members can have their membership revoked by CBP for one reason or another. This article will describe eligibility requirements for membership in Global Entry, the benefits of membership in Global Entry, how to apply for membership, and, importantly, how you can challenge any denial or revocation of membership with CBP.

Global Entry is a CBP program that allows expedited clearance for preapproved, low-risk travelers upon arrival in the United States. At airports, program members proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification, and complete a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Global Entry members are eligible to participate in TSA Pre. U.S. citizens and U.S. lawful permanent residents enrolled in NEXUS or SENTRI are also eligible to participate in TSA Pre, as are Canadian citizens who are members of NEXUS. A Global Entry member or eligible NEXUS or SENTRI member may enter his or her membership number (PASS ID) in the "Known Traveler Number" field when booking airline reservations. Better yet, enter your PASS ID into your frequent flyer profile with the airline. The membership number enables Transportation Security Administration's (TSA) Secure Flight System to verify that you are a legitimate CBP Trusted Traveler and eligible to participate in TSA Pre.

Global Entry is CBP's most popular Trusted Traveler program. But not everyone is eligible. U.S. citizens, U.S. lawful permanent residents, and citizens of the following countries are eligible for Global Entry membership: Colombia, United Kingdom, Germany, Panama, Singapore, South Korea, and Mexico. Canadian citizens and residents are eligible for Global Entry benefits through membership in the NEXUS program. Please note that applicants under the age of 18 must have a parent's or a legal guardian's consent to participate in the program.

Travelers must be pre-approved for the Global Entry program. Global Entry is a voluntary program available to travelers who pass a comprehensive background investigation. There is a computer check against criminal, law enforcement, customs, immigration, agriculture, and terrorist indices to include biometric fingerprint checks and then a personal interview with a CBP officer. Most applicants receive a formal letter that states, in part: "We are pleased to inform you that your U.S. Customs and Border Protection (CBP) Global Entry program membership has been approved. You may use the program as soon as you receive and activate your new Global Entry card."

Many applicants never receive such a welcoming letter from CBP. An applicant may not be eligible for participation in the Global Entry program if he or she:

1.  Provided false or incomplete information on the application;
2. Has been convicted of any criminal offense or has pending criminal charges or outstanding warrants (to include driving under the influence);
3. Has been found in violation of any customs, immigration, or agriculture regulations or laws in any country;
4. Is the subject of an ongoing investigation by any federal, state, or local law enforcement agency;
5. Is inadmissible to the United States under immigration regulation, including applicants with
approved waivers of inadmissibility or parole documentation; or
6. Cannot satisfy CBP of his or her low-risk status.

Now you realize the benefits of membership in Global Entry and you are eligible to apply for Global Entry, so the next step is to apply. The steps are very simple.

1. Create a Global Online Enrollment System (GOES) account.
2. Log in to your GOES account and complete the application. A U.S. $100 nonrefundable fee is required with each completed application.
3.  After accepting your completed application and fee, CBP will review your application. If your application is conditionally approved, then your GOES account will instruct you to schedule an interview at a Global Entry Enrollment Center located at most international airports. Each applicant must schedule a separate interview.
4. You will need to bring your valid passport(s) and one other form of identification, such as a driver's license or ID card to the interview. If you are a lawful permanent resident, you must present your machine-readable permanent resident card.

In the event an applicant is denied or membership has been revoked from Global Entry or other Trusted Traveler program, the person should be provided information in writing detailing the reason for this action. Unfortunately, the reality is that the standard statement provided to the applicant merely concludes: "You do not meet the program eligibility requirements." For members whose membership is revoked, the standard instruction from CBP is "You have been found to have violated CBP laws, regulations, or other related laws." That's it; nothing else is provided. The only appeal to such a denial or revocation is a written appeal to the CBP trusted traveler ombudsman to request reconsideration.
I have seen many applicants, including attorneys, be denied membership in Global Entry. There are a variety of reasons for such a denial, including: juvenile criminal history, immigration problems, court expunged criminal information, and questionable international travel history. Even a shoplifting or assault misdemeanor is sufficient for CBP to deny an applicant membership in Global Entry. A violation that occurred thirty or forty years ago or was committed in another country is sufficient for CBP to deny membership in Global Entry. The U.S. Department of Homeland Security has extremely extensive data available to it worldwide to determine whether someone is a low-risk international traveler who should be admitted into the Global Entry program. If you believe your data is private, when it comes to the U.S. Department of Homeland Security, think again.

Nevertheless, the U.S. Congress and CBP want to expand the number of people who become members of Global Entry. When the Committee on Appropriations for the U.S. House of Representatives made its 2015 annual appropriations for the U.S. Department of Homeland Security, including CBP, it made special mention of the Global Entry program. It stated, in relevant part:

The Committee is pleased to see the Global Entry program transition from a successful pilot to a permanent trusted traveler program. The Committee encourages CBP to continue to increase individual enrollment as well as the number of nations eligible to participate in the program. This will allow greater numbers of low risk travelers to efficiently move through security screening and give CBP personnel the ability to put greater focus on higher-risk travelers ...
If an applicant believes he or she is exactly the type of low-risk international traveler that the members of the Committee on Appropriations were contemplating in funding the Global Entry program, the applicant, through his or her customs attorney, should file a request for reconsideration with CBP.

Please note that being admitted into Global Entry is a privilege, not a right. As explained in the case of Roberts v. Napolitano, 792 F. Supp. 2d 67, 73 (D.D.C. 2011):

The Global Entry program was authorized by the Intelligence Reform and Terrorism Prevention Act of 2004 (hereinafter "IRTPA"). See 8 U.S.C. § 1365b(k). The IRTPA instructs the Secretary of Homeland Security to "establish an international registered traveler program" in order to "expedite the screening and processing of international travelers, including United States Citizens and residents, who enter and exit the United States." 8 U.S.C. § 1365b(k)(3)(A). The Secretary was further instructed to "initiate a rulemaking to establish the program [and] criteria for participation," and ensure that the program "includes as many participants as practicable by . . . providing applicants with clear and consistent eligibility guidelines." 8 U.S.C. § 1365b(k)(3)(C), (E).

The applicant gets one chance to appeal a denial, and a member gets one chance to challenge revocation of membership in Global Entry. There is no judge, no hearing, no discovery, no face to face meeting, or even a telephone call to the deciding official at CBP. As stated above, CBP has absolute discretion to grant or deny Global Entry membership. Moreover, it does not have to provide any specific reason for denial or revocation of membership.
In conclusion, I recommend anyone who is eligible for participation as a member in Global Entry to apply. For those who have a Platinum American Express card, the $100 application fee is waived. Acceptance is routinely made within a few weeks. For someone like me who travels from China or Japan on a 16-hour flight back to the United States, I want to clear CBP and get out of the airport as soon as possible. Global Entry does that for you. If, by chance, an applicant is denied or a revocation occurs, the person should seriously consider challenging that denial or revocation because it may have been made by CBP without complete information. Appeals are successful in getting previously denied applicants accepted into the Global Entry program or to reactivate members whose membership has been revoked.

Peter Quinter is the chair of the Customs and International Trade Law Group at the law firm of GrayRobinson PA. Based in the Miami, Florida, office, he represents U.S. importers and exporters, ocean and air carriers, warehouses, trucking companies, and overseas manufacturers and shippers regarding compliance with the import and export laws and regulations of the United States. He is board certified in international law, author of the popular blog, a frequent international guest lecturer on customs and international trade-related topics, past chair of the Customs Law Committee of the American Bar Association, and past chair of the International Law Section of The Florida Bar.

Sunday, February 14, 2016

Peter Quinter, Legal Expert on FDA and CBP Imported Seafood Regulations, Invited to Speak at Seafood Expo

I have been invited for the 5th year in a row to speak at the world's largest seafood show - Seafood North America - taking place in Boston, Massachusetts, on March 6-8, 2016.

My presentation on Monday, March 7, 2016 will address the new FDA regulations on imported seafood, including the foreign supplier verification and  food safety issues.  We will continue to discuss the actions to take whenever:
  • there is a detention of imported seafood by the FDA
         how to respond to a Notice of FDA Action

  • when and how to get a private laboratory analysis for your imported seafood
  • your seafood has been refused entry into the United States by the FDA
  • submitting a Petition to U.S. Customs and Border Protection whenever a penalty or claim has been assessed against the importer
  • what to do when the FDA concludes your seafood is adulterated  

    Peter Quinter, Chair
    Customs and International Trade Law Group
    GrayRobinson, P.A.
    333 SE 2nd Ave.
    32nd Floor
    Miami, Florida 33133

    office (305) 416-6960
    mobile (954) 270-1864
    Skype Peter.Quinter1
    Register now and save
    North America's Largest Seafood Trade Event
    The Seafood Marketplace for North America
    Formerly International Boston Seafood Show
    Seafood Expo North America & Seafood Processing North America
    March 6-8, 2016   |   Boston, USA   |   Boston Convention & Exhibition Center

    Thank you for your interest in a past Seafood Expo North America/Seafood Processing North America, formerly the International Boston Seafood Show. It is because of you that each year is a success.

    More than 20,600 buyers and suppliers of seafood products, equipment and services come to the exposition to do business. With more than 1,200 exhibiting companies represented at the expo, special events by industry professionals and a complete conference program presented by industry experts, there are unlimited opportunities to make the right connections that will move your business forward.
    Discover the tools and best practices that will increase your profits and move you ahead of the competition. With informative conference sessions, a New Product Showcase, Featured Product Showcase and an exhibit floor packed with the industry's thought leaders, you'll come away with the ideas and strategies your business needs to move ahead.
    Thousands of new fresh, frozen and packaged seafood products, processing equipment and services are introduced to the North American seafood market every year. Get the first look at the newest flavors and trends hitting the market so you can keep your customers happy and maximize your seafood sales and profits at the same time.
    Save 40% on the on-site registration price - register to attend today!*
    *Register before March 6 and save on the on-site registration price. 

    Seafood Expo North America & Seafood Processing North America
    Boston Convention & Exhibition Center
    March 6-8, 2016

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    Thursday, August 6, 2015




    Peter Quinter
    Customs and International Trade Attorney

    GrayRobinson, P.A.
    333 SE 2nd Avenue, Suite 3200
    Miami, FL 33131

    Office (305) 416-6960
    Mobile (954) 270-1864

    Mr. Quinter has successfully resolved dozens of proposed penalty cases for violations of shipments by air which were issued by the Federal Aviation Administration (FAA) through its many Offices of Regional Counsel at locations throughout the United States.


    The Federal Aviation Administration (FAA) has the authority to enforce the Hazardous Materials Regulations (HMR) at 49 CFR Parts 171 to 185, including issuing civil monetary penalties against violators. An understanding of the HMR, the procedures used by the FAA to issue the violation notices, the alternative procedures to respond to a proposed penalty notice, and the factors used by the FAA in determining the amount of the penalties will assist shippers, carriers, and other companies which are involved in the logistics of transporting hazardous materials to mitigate such penalties.

    I.          Legal Sources

    A.  Federal Hazardous Materials Transportation Law, 49 U.S.C. §§ 5101-5127

    1.  49 U.S.C. § 5123 — civil penalty

    a.  "knowing" violation. A person acts knowingly —
    i. when the person has actual knowledge of the facts giving rise to  the violation; or
    ii. a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge.

    NOTE: A carrier knowingly violates the HR. when the carrier accepts or transports a hazardous material with actual or constructive knowledge that a package contains a hazardous material not properly packaged, marked, labeled, or described on a shipping paper as required by the HMR.

    b.         Amount of penalty —

    i.  Up to $50,000 per violation for violations occurring on or after August 10th, 2005 (typical amount is $47,250)

    ii.  Up to $100,000 per violation if the violation results in death, serious illness, or severe injury to any person or substantial destruction of property.

    2.         49 U.S.C. 5124 - criminal penalty up to $500,000 and 5 years in prison

    Requires evidence of both knowledge of the hazardous materials laws and regulations and an intent to violate them.

    B.        Hazardous Materials Regulations (HMR), 49 CFR Parts 171-178
    1.  Common Shipper Violations

                            a.  Undeclared HAZMAT aboard an aircraft
    b.  Misdeclared HAZMAT aboard an aircraft

    NOTE:  Shipper’s Declaration for Dangerous Goods states:

    “I hereby declare that the contents of this consignment are Ally and accurately described above by the proper shipping name, and are classified, packaged, marked labeled/placarded, and are in all respects in proper condition for transport according to applicable international and national governmental regulations."

    2.         Common Air Carrier Violations

    a.  Improper acceptance of HAZMAT for air transportation
    b.  Failure to notify FAA properly of incident/discrepancies in HAZMAT shipment.

    See 49 CFR 175.31. Must notify nearest FAA Civil Aviation Security Field Office by telephone as soon as practicable.

    NOTE: 49 CFR Part 175 violations certainly apply to "aircraft operators", but also to air freight forwarders, even ground handling crews.

    C.  FAA Investigative and Enforcement Procedures, 14 CFR Part 13

    III.       Criteria Used by FAA to Assess Amount of Penalty

    A.  Nature, circumstances, extent, and gravity of the violation, the degree of culpability of the violator, any history of past violations, the ability to pay, any effect of the ability to continue to do business, and other matters as justice requires.

    B.  Hazardous Materials Sanction Guidance Matrix Similar penalties should be imposed in similar cases, yet each case must be evaluate on its own facts.

    C.        Guidelines for Civil Penalties, 49 CFR Part 107, Subpart D, Appendix A

    D.        Good Arguments

    1.         Prompt, corrective action is critical

    2.         Violation occurred because of reasonable reliance on incorrect information from another source.

    3.         Small Business Regulatory Enforcement Fairness Act.
    IV.       FAA Penalty Procedures

                A.        Notice of proposed civil penalty

    B.        Not later than 30 days after receipt of the notice of proposed civil penalty, the person charge with a violation shall respond.

    1.         Pay in full, or.
    2.         Submit written information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty or the amount of the penalty is not warranted by the circumstances, or.

    3.         Request informal, telephonic conference with an attorney from the Office of Chief Counsel, FAA, or.

    4.         Make a written monetary counter-offer, or.

    5.         Request a formal hearing with an Administrative Law Judge.

    NOTE:  All contact regarding the proposed penalty and penalty with be with an attorney from Regional Counsel’s Office of the FAA, who acts on behalf of the Federal Agency.

    V.     Conclusion

    With 1.2 million daily movements of HAZMAT in the United States and 100,000 daily shipments by air in the United States, even with the best of intentions by most companies, there are bound to be companies that intentionally, recklessly, or negligently violate the HMR. Even the most diligent companies will inevitably violate the HMR, even only accidentally and in a minor way.

    The May 1996 crash of ValuJet in Miami in May 1996 is a reminder of the seriousness with which the international HAZMAT organizations, the United States Government, and the HAZMAT private industry must continue to make the transportation of hazardous materials safe and secure for all of us. Not committing a violation is the best thing to do, but once a violation occurs, properly explaining all the facts and circumstances to the FAA investigator and to the attorney from the Regional Counsel's Office of the FAA may get the penalty cancelled or significantly reduced.