Friday, April 4, 2014

Importing Counterfeit Merchandise and U.S. Customs and Border Protection

Every day, counterfeit merchandise of all kinds attempts to enter the United States. Whether it be handbags, jewelry, clothing, electronics, or medicines, it amounts to a worldwide phenomenon totalling billions of dollars. Fortunately, U.S. Customs and Border Protection (CBP) officers at the air, ocean, and land borders have the legal authority to stop, examine, and seize suspected counterfeit merchandise. That is why companies as diverse as Rolex, Gucci, Apple, Ford, and Disney register their trademarks with the U.S. Patent and Trademark Office, and then take the additional, important step of recording those trademarks with CBP.

CBP just issued its Fiscal Year 2013 seizure statistics for counterfeit merchandise that attempted to illegally enter the United States. You guessed right, the country of origin for the most counterfeit merchandise was again China, and the seizure statistics continue to climb year after year in both the number of seizures and the value of the seized merchandise.

On Thursday, April 11, 2014, in Las Vegas, at the 40th Annual Conference of the National Customs Brokers and Forwarders Association of America, Inc. (NCBFAA), I will provide a lecture on "Intellectual Property Rights: How to Detect and Avoid the Scammers". In other words, how, why, and when CBP targets and seizes suspected counterfeit merchandise, how trademark owners may assist CBP to enforce the intellectual property rights laws, and how owners of merchandise wrongly seized by CBP may attempt to get their merchandise released through the administrative petition process with the CBP Fines, Penalties, and Forfeitures Offices. My fellow presenter at the Conference on this topic is Robert 'Bob' Crane, U.S. Customs Program Manager, Global Security and Brand Protection, Underwriters Laboratories.

Too often, CBP officers seize merchandise that is suspected of being counterfeit or otherwise infringing a trademark or copyright, but really does not. The concept of gray-market, genuine merchandise still seems to be a challenging one for CBP. Moreover, when suspected counterfeit merchandise is seized by CBP, the current administrative petition process described at 19 CFR Part 171 takes far too long to resolve, especially when the value exceeds $100,000, and the case must be referred from the ports to CBP HQ in Wshington, D.C. By the time CBP realizes and agrees that the merchandise is not counterfeit, and releases it back to the importer, it could be a year later. The merchandise no longer has the same value, and the contract for the resale of the merchandise has likely been cancelled, so the importer who did (or tried to do) everything right, but the merchandise has been seized anyway, either because CBP or the importer made an error. In those situations, the importing company is royally you know what. These situations do not show up in the annual CBP statistics, but is an unfortunate reality for many.

Peter Quinter, Shareholder
Customs and International Trade Law Group
GrayRobinson, P.A.
Miami, Florida
Office (305) 416-6960
Mobile (954) 270-1864
peter.quinter@gray-robinson.com


For questions or comments about this post, please add below.

Monday, March 24, 2014

Surprise! Tom Winkowski Transfers From U.S. Customs and Border Protection to U.S. Immigration and Customs Enforcement

In a move that surprised many in the international trade community, Tom Winkowski, former Acting Commissioner of U.S. Customs and Border Protection (CBP), effective immediately, is now in charge of the U.S. Immigration and Customs Enforcement, popularly known as "ICE". Mr. Winkwoski's new official title is Principal Deputy Assistant Secretary. Mr. Winkowski had over 30 years of knowledge and experience with U.S. Customs, including what many refer to as 'the good old days' pre-9/11 under the U.S. Customs Service when he was a Port Director in Los Angeles and Miami.

ICE is the principal investigative arm of the U.S. Department of Homeland Security (DHS). Created in 2003 through a merger of the investigative and interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization Service, ICE now has more than 20,000 employees in offices in all 50 states and 47 foreign countries. The "Mission" of ICE is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade and immigration. The agency has an annual budget of more than $5.7 billion dollars, primarily devoted to its two principal operating components - Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). As stated in ICE's current 'Strategic Plan' are topics already familiar to Mr. Winkowski:

The four key priorities for the agency's future:

1. Prevent terrorism and enhance security
2. Protect the borders against illicit trade, travel and finance
3. Protect the borders through smart and tough interior immigration enforcement
4. Construct an efficient, effective agency

This move by Mr. Winkowski, one of CBP's most decorated and accomplished executives, comes soon after CBP received its new Commissioner. Mr. R. Gil Kerlikowske was nominated by President Obama, and sworn in on March 7, 2014, as Commissioner of CBP. CBP has 60,000 employees, and budget of $12.4 billion. Most recently, Mr. Kerlikowske served as Director of the White House Office of National Drug Control Policy. He brings four decades of law enforcement and drug policy experience to his new position at CBP. He formerly served nine years as the Chief of Police for Seattle, Washington.

Commissioner Kerlikowske will deliver an address at the National Customs Brokers and Forwarder Association's Annual Meeting held in Las Vegas, Nevada, from April 6-10, 2014. We will see if 40 years of drug enforcement will help CBP properly rebalance its 200 year, proud history of facilitating international trade rather than hindering it under the guise of "national security".

Please post your comments below, or contact me directly.

Peter Quinter, Partner
Customs and International Trade Law Group
GrayRobinson, P.A.
1221 Brickell Avenue, 16th Floor
Miami, Florida 33131

peter.quinter@gray-robinson.com
Office (305) 416-6960
Mobile (954) 270-1864
Skype Peter.Quinter1



Tuesday, March 4, 2014

Importing Gold, U.S. Customs, and the Department of Homeland Security

In 2013 and so far in 2014, there has been a significant increase in seizures of imported gold shipments, and arrest and criminal prosecution of persons involved in the importation, transportation, assaying, and smelting of gold. U.S. Customs and Border Protection (CBP) routinely examine, and sometimes seize, gold as it is imported into the United States, for violations of false declarations (18 USC 542). Immigration and Customs Enforcement (ICE) Special Agents with the U.S. Department of Homeland Security (DHS) often investigation, and sometime arrest, persons in the gold business for smuggling (18 USC 545) and money laundering (18 USC 1956).

I will provide a description and explanation for the U.S. Government's sudden, keen interest in precious metals, especially gold, at the annual meeting of the International Precious Metals Institute's annual conference in Orlando, Florida, on June 7-10, 2014. We will discuss what ICE calls "trade-based money laundering", and how to avoid problems with both CBP and ICE.

Contact me with any questions or post a comment below.

Peter Quinter, Chair
Customs and International Trade Law Group
GrayRobinson law firm
1221 Brickell Ave.
Suite 1600
Miami, Florida 33131

office (305) 416-6960
mobile (954) 270-1864
peter.quinter@gray-robinson.com
Skype Peter.Quinter1

Is Your Lawyer a 'Real' Customs Lawyer? 10 Questions for Which Every Customs Lawyer Should Know the Answers

It is unfortunate how many times I hear the same sad story from a new client who has decided to fire his or her prior lawyer, and has decided to hire a 'real' customs and international trade attorney.  Customs and International Trade attorneys have specialized knowledge and experience for matters involving the import and export of merchandise generally, and particularly in interpreting the customs regulations in Title 19 of the United States Code (USC), Title 19 of the Code of Federal Regulations (CFR), and interacting with U.S. Customs and Border Protection (CBP).

Here are 10 Questions you can ask your lawyer to know if he or she is a 'real' customs lawyer, a pretender, or just someone who dabbles in this area of the law.

A real customs lawyer should know the answers to all these questions without hesitation. If the lawyer you are interviewing passes this test, you can bet he or she is a 'real' customs lawyer.

1.  What does the acronym C.I.T. mean?

2.  What is the allowed maximum number of days after the liquidation of an entry for an importer to file a Protest with CBP?

3.  What is the maximum number of days allowed by CBP's Fines, Penalties and Forfeitures Office to file a Petition after a seizure of merchandise by CBP without having to request an extension?

4.  Can someone appeal the denial of a Global Entry application?

5.  What does the acronym CROSS mean?

6. What are at least 5 free trade agreements with the United States?

7.  What is required in a prior disclosure to CBP?

8.  Are buying or selling commissions dutiable?

9.  How many days does an importer have to destroy or export merchandise refused entry into the United States by the FDA in order to avoid being assessed a liquidated damages claim by CBP?

10. What does the acronym C-TPAT mean?

Other indications that someone is a 'real' customs lawyer are membership in the Customs Law Committee of the American Bar Association (ABA) and the Customs and International Trade Bar Association (CITBA), plus selection and recognition in legal directories such as the International Trade: Customs section of Chambers USA.  Many real customs lawyers previously worked for the U.S. Customs Service or CBP in the Office of Chief Counsel of in the Office of Regulations and Rulings earlier in their careers before joining law firms.

There is no single test, but the above questions should certainly help anyone looking to find a 'real' customs lawyer.

Post a comment below or contact me directly at:

Peter Quinter, Chair
Customs and International Trade Law Group
GrayRobinson, P.A.
1221 Brickell Ave.
16th Floor
Miami, FL 33131
office (305) 416-6960
mobile (954) 270-1864
email peter.quinter@gray-robinson.com
Skype Peter.Quinter1

Sunday, January 5, 2014

U.S. Customs Can Examine The Contents of Your Laptop, Mobile Phone, and Any Other Electronic or Digital Devices Whenever Entering the United States

I have written for the past several years about the court decisions around the United States regarding the inspection of the contents of laptops, mobile phones, and other digital devices by officers of the United States Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS). These inspections or searches of digital devices are still subject to the Fourth Amendment of the United States Constitution against unreasonable searches and seizures by Government officials. The legal question is what is "unreasonable". CBP has long maintained the legal position that there is a "border search exception" to the Fourth Amendment. For the most part, the courts in the United States, including the U.S. Supreme Court, have agreed with CBP.

The December 31, 2013 decision by Senior United States District Court Judge Edward R. Korman, United States District Court for the Eastern District of New York (Brooklyn, NY) issued a Memorandum and Opinion that no reasonable suspicion is required by a CBP or Immigration and Customs Enforcement (ICE) officer to stop, detain, conduct a brief examination, take from the owner/traveler for further examination, and thereafter conduct a forensic, comprehensive examination of the contents of the digital device, including copying all its contents, and sharing those contents with other Federal agencies. The case is entitled Pascal Abidor, National Association of Criminal Defense Lawyers, National Press Photographers Association v. Janet Napolitano, Alan Bersin, John T. Morton, Case No. 1:10-cv-04059-ERK.

The Plaintiffs requested the Court to grant a declaratory junction against CBP and ICE that its policies regarding inspection of electronic devices that travelers seek to carry across an international border into the United States was a violation of the First and Fourth Amendments to the U.S. Constitution.

The particular facts of Mr. Abidor's claim was that on an Amtrak train that crossed into the United States from Canada at Port Champlain, a CBP officer examined his customs declaration and U.S. Passport. Mr. Abidor stated that he briefly lived in Jordan and recently visited Lebanon. The CBP officer demanded to view the contents of Mr. Abidor's laptop, and discovered pictures of rallies of Hamas and Hezbollah, both of which were designated by the U.S. Department of State as terrorist organizations. Mr. Abidor explained that he was a 26 year old student in the Institute of Islamic Studies at McGill University in Montreal, and that his specific area of research for his Ph.D. degree is the modern history of Shiites of Lebanon.

Mr. Abidor was detained and questioned by CBP for 5 hours before being released. His laptop was retained for further inspection, and returned to him 11 days later by CBP by mail.

The National Association of Criminal Defense Lawyers argued that its members have a duty to safeguard privileged and confidential information contained in their electronic devices. The National Press Photographers Association argued that its members communicate with sources who request guarantees of anonymity that they may no longer be able to offer if their electronic devices are subject to search by Government officials.

Judge Korman, in his decision, stated:
[A] careful reading of the CBP and ICE directives indicates that these agencies are sensitive to the privacy and confidentiality issued posed by border searches of electronic devices...[D]eclaratory relief is not appropriate because it is unlikely that a member of the association plaintiffs will have his electronic device searched at the border, and it is far less likely that a comprehensive forensic search would occur without reasonable suspicion.
Judge Korman cited the U.S. Supreme Court case of United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985), which stated, in relevant part:
Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probably cause.
Judge Korman also cited to cases in the Third and Fourth Circuit Courts of Appeal that concluded that searches of electronic devices constitute routine border searches, hence no reasonable suspicion is required for a CBP or ICE officer to examine them at the border.

Finally, even though Judge Korman stated that the 2 associations did not have standing to request declaratory relief, and that there was no need for the Government to establish reasonable suspicion, regarding Mr. Abidor, he stated: "The agents certainly had reasonable suspicion supporting further inspection of Abidor's electronic devices," and dismissed the case.

The Fourth Amendment to the United States Constitution provides:
[T]he right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated...
In my opinion, we have not heard the last word about what is and what is not an unreasonable search by CBP officials at the border. The law is always being interpreted and is always changing. Judges and lawyers have a responsibility to protect the people from the world described in George Orwell's famous book, 1984.

For any questions about searches by U.S. Customs and Border Protection or any Department of Homeland Security officers, please post your comments below or contact me directly.

Peter Quinter, Chair
Customs and International Trade Law Group
GrayRobinson law firm
1221 Brickell Ave
16th Floor
Miami, FL 33131

office (305) 416-6960
mobile (954) 270-1864

email Peter.Quinter@Gray-Robinson.com

Skype Peter.Quinter1

Saturday, December 28, 2013

10 Predictions in 2014 for United States Customs and Border Protection (CBP)

My annual prediction list for CBP for the coming year includes:

1. President Obama will nominate and the Senate will confirm a new, permanent Commissioner;

2. CBP's annual budget will increase to continue its pattern ever since being created as an agency of the U.S. Department of Homeland Security in 2003;

3. The "do nothing" United States Congress will finally pass the Customs Reform bill providing more emphasis to CBP's traditional international trade enforcement mission;

4. There will be a record number of importer audits by CBP's own Office of Regulatory Audit focused on companies which attempt to avoid the payment of antidumping duties;

5. The continuation of enforcement of intellectual property rights laws as a primary focus, especially the examination and seizure of counterfeit merchandise attempting to enter the United States;

6. CBP locating more officers overseas at U.S. Embassies and Consulates, and continuing its narcotics enforcement activities in foreign countries with its Air and Marine operations;

7. The U.S. General Accountability Office (GAO) will issue another critical report of CBP's cargo selectivity program;

8. A record number of licensed customs brokers getting counseled by CBP Broker Management officers at ports around the country, and being assessed penalties for "failure to supervise" among various other violations of 19 USC 1641 and 19 CFR Part 111;

9. The expansion of categories of companies that may apply for membership in the Customs-Trade Partnership Against Terrorism (C-TPAT), and better, practical benefits for members, especially at Tier 2 and 3 levels; and

10. A significant increase in annual pay for CBP employees rather than none or insultingly low increases that have occurred the past few years during the "Great Recession".

Peter Quinter, Chair
Customs and International Trade Law Group
GrayRobinson, P.A.
1221 Brickell Ave.
16th Floor
Miami, Florida 33312

office (305) 416-6960
mobile (954) 270-1864

email Peter.Quinter@Gray-Robinson.com
www.GrayRobinson.com

Please provide your comments on this Blog post by clicking below.

For any questions on import, export, customs, or international trade compliance or enforcement generally, feel free to contact me.

To all my friends, colleagues, co-workers, CBP employees, and clients, let's have a great New Year in 2014!

Wednesday, December 18, 2013

FDA Florida District Director Emma Singleton Retiring January 3, 2014

After 40 years with the U.S. Food and Drug Administration (FDA), Ms. Emma Singleton, Director, Florida District, is retiring. Ms. Singleton began her career in 1973 in Minneapolis, Minnesota as a Lab Technician. With other, increasingly responsible positions in Atlanta and Denver, Ms. Singleton began as the FDA's Florida District Director in June 2000.

For those persons who have known and worked with this caring, dedicated, and always professional, public servant, her contact information is:

Emma R. Singleton
District Director - Florida District
U.S. Food and Drug Administration
555 Winderley Place
Suite 200
Maitland, FL 32751
emma.singleton@fda.hhs.gov

On behalf of the international trade community, I wish Ms. Singleton well. Emma, enjoy your time volunteering, travel, and spending time with your family.

If you desire to comment on Ms. Singleton's service, please feel free to do so in the section below.

Peter Quinter, Chair
Customs and International Trade Law Group
GrayRobinson, P.A.
1221 Brickell Ave.
16th Floor
Miami, FL 33131
office (305) 416-6960
mobile (954) 270-1864
Peter.Quinter@Gray-Robinson.com