Friday, April 27, 2012

Canada Border Services Agency President Luc Portelance




Customs Attorney Peter Quinter and CBSA President Luc Portelance

Luc Portelance, President, Canada Border Services Agency (CBSA) and I had dinner along with a small delegation from the Canadian Consulate in Miami. The CBSA is the Canadian equivalent of the U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security.

Mr. Portelance was returning to Ottowa, Canada via Miami from Punta del Este, Uruguay, where the members of the World Customs Organization (WCO) had met to attempt to harmonize the complex rules of the various customs administrations.  Our discussion at dinner varied from using targeting technology to separate high-risk from low-risk cargo, the benefits of voluntary programs such as CBP's Customs-Trade Partnership Against Terrorism (C-TPAT) and Global Entry, and the costs and harm to business for delayed cargo selected for examination. 

It was interesting to compare CBP to the CBSA. CBP has 60,000 employees and the CBSA has only 15,000.  CBP includes the U.S. Border Patrol, and has an Air and Marine Division, while the CBSA has none of that but relies upon the Royal Canadian Mounted Police, as well as other law enforcement agencies. Interestingly, the Canadian Parliament has mandated a decrease in the annual budgets of the CBSA for the next three years whereas the U.S. Congress has always approved annual significant increases for CBP and other agencies within the U.S. Department of Homeland Security. 

What struck me most at the conclusion of our 2 hour conversation was that Mr. Portelance sounds much more like a businessman than a government bureaucrat.  While acknowledging the importance of security in both the cargo and passenger environments, Mr. Portelance emphasized the importance of facilitating trade and travel.  Hopefully, over 10 years after the tragedy of 9-11-01, all of the country members of the WCO will come to the same realization.

On a personal level, Mr. Portelance was entertaining and informative. He hails from Montreal which was helpful since that is where I will travel on my summer holiday.  He has been the President of the CBSA for approximately 4 years, and his professional background is the intelligence community.

Peter Quinter, Shareholder
Customs and International Trade Law Group
GrayRobinson, P.A.
1221 Brickell Ave.
Suite 1600
Miami, Florida 33131
(305) 416-6960
Peter.Quinter@Gray-Robinson.com

OFAC Subpoenas, Penalties and Voluntary Disclosures

Peter Quinter
At the Spring Meeting in New York City of the American Bar Association's Section of International Law,  I presented a workshop on how to handle administrative subpoenas, investigations, and proposed penalties by the Office of Foreign Assets Control, U.S. Department of the Treasury.  I also discussed how and when to submit a voluntary self-disclosure to the Office of Foreign Assets Control (OFAC).

Some practical advice provided during the workshop:

1.  OFAC is very serious about its responsibilities regarding economic embargoes and sanctions so do not ignore any correspondence from OFAC, especially a subpoena.

2.  OFAC regulations are complex so be sure to hire an attorney experienced with OFAC cases. Since OFAC regulations are Federal, you may hire an attorney anywhere in the United States. For example, your company may be located in Los Angeles, but you may hire an attorney in Miami.

3.  Responding to an administrative subpoena should be done by your attorney, although an officer of the company should sign a declaration that all statements are true to the best of that officer's knowledge.

4.  Your attorney should engage in conversation with the OFAC representative to get a better understanding of the investigation.

5.  If an error, mistake, or serious violation is discovered by the company regarding one of its shipments (for example, an export to a country without the necessary license approval from OFAC), hire an attorney to do a prompt, internal investigation, and consider making a voluntary self-disclosure to OFAC.

6.  Be absolutely sure the voluntary self-disclosure to OFAC contains all of the required information as set forth in the OFAC regulations in Title 31 of the Code of Federal Regulations, otherwise, there is a risk of it being rejected by OFAC.

7.  Penalties by OFAC are $250,000 per violation, but a voluntary self-disclosure may result in no penalty at all or at least a much lower penalty.

For any questions regarding OFAC, please contact me directly or post a comment below.

Peter Quinter, Shareholder
Customs and International Trade Law Group
GrayRobinson, P.A.
Miami, Florda
Peter.Quinter@Gray-Robinson.com
Office (305) 416-6960

Sunday, April 8, 2012

Global Entry Program of U.S. Customs and Border Protection

Peter Quinter, Esq.
U.S. Customs and Border Protection's Global Entry program is a smashing success. I have been a member for a few years, and have personally experienced its principal benefit of rapidly and easily clearing Customs upon arrival in the United States.  Global Entry allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States.   Applicants must first pass a comprehensive background investigation  Not everyone gets accepted, however, and for those people who have applied and been denied, there is an appeal process.

To apply, simply answer some questions on-line at www.globalentry.gov, then schedule an appointment at one of the many CBP enrollment centers. Bring with you a few required documents such as a passport, answer a few simple questions about your international travels, and you will soon be notified of your acceptance or disapproval into Global Entry.

If disapproved, you will be notified electronically and the CBP disapproval letter will be from "Supervisor, Global Entry Enrollment Center, U.S. Customs and Border Protection," located in Williston, Vermont.  A typical disapproval letter will say.

We regret to inform you that your membership in Global Entry has been disapproved for the following reason(s):
You have been found to have violated CBP laws, regulations, or other related laws.
CBP has never set forth any specific guidelines for disapproving an applicant except "other circumstances that indicate to CBP that you have not qualified as 'low risk' - whatever that means.

Fortunately, there is an administrative appeal process which the applicant should pursue.  There is no court, no judge, no meeting with CBP, and not even any conversation with CBP as part of the appeal; it is all done by paper to the Vermont address.  You get one chance to do it right, so make sure your appeal is comprehensive and persuasive.

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Comments or questions, click below, or contact me directly.

Peter Quinter, Partner in Charge, Customs and International Trade Law Department
(954) 270-1864 or pquinter@gray-robinson.com