Customs | Customs Issues
Customs Enforcement Mechanisms for Violations of Other Agencies' Requirements and Petitions for Mitigation, Cancellation, or Remission
Agencies like FDA, USDA, TTB and the Consumer Products Safety Commission (CPSC) rely upon Customs' administrative and civil remedies when the other government agency determines that a regulated product has been, or is being, imported in violation of regulatory requirements.
Most commonly, these agencies seek Customs assistance in accomplishing the following on their behalf:
- Customs demand for redelivery (for refusal of admission or failure to hold product another government agency wishes to physically examine or sample)
- Customs liquidated damages claims
- Civil monetary penalties under 19 U.S.C. 1592 or 1595a
- Customs administrative forfeiture (or civil forfeiture; seizure) under 19 U.S.C. 1595a
Customs Demands for Redelivery and Liquidated Damages Claims
Once refused by FDA, or another agency, an imported article must be exported or destroyed within 90 days of the refusal. Customs will ordinarily issue a demand for redelivery of refused products within 30 days of the issuance of the refusal. In other situations, FDA or another agency may wish to examine an imported product, but the importer, owner, or consignee failed to hold the product for examination. The agency will ask Customs to demand redelivery of the product so it can be examined.
Failure to redeliver such products will ordinarily result in Customs issuing a claim for liquidated damages (Customs bond action) in amounts up to three times the value of the refused merchandise.
Persons whose product is subject to a Customs demand for redelivery may protest the demand. For instance, if FDA had already released product that it later is trying to examine or refuse, the demand might be subject to cancellation.
Persons subject to a notice or claim for liquidated damages have the right to petition Customs seeking mitigation or cancellation of the case against them.
If you find your imported article has already been distributed in domestic commerce and you are unable to redeliver it for examination or to re-export it (if refused by FDA), FDAImports.com, LLC may be able to assist you by obtaining a reduction - or even cancellation - of the Customs claim.
Civil Monetary Penalties (19 USC 1592 or 1595a(b))
Whereas liquidated damages claims arise out of the bond agreement between Customs and the importer of record (a contract claim), penalty actions are more like civil tort claims for more egregious violations of federal law. Even though they are designed to compensate for "wrongs," they are still civil claims and not criminal prosecutions.
The basis for the penalty action ordinarily include allegations that an importer has imported something contrary to U.S. law in a manner that raises the concern that the violation was somehow designed to defraud the government; for instance, when an agency wishes to examine imported product and the importer presents for inspection product from a shipment that was entered prior to or later than the shipment FDA has slated for examination or sampling. Such substitution cases, if proven, can result in civil monetary penalties up to the domestic value of the products at issue depending upon the statute under which Customs proceeds.
Civil monetary penalties may be assessed against persons who are directly responsible for an illegal importation, their agents if they participate in the importation, and others who facilitate, aid or abet an illegal importation.
FDAImports.com, LLC's affiliated attorneys routinely handle Customs civil monetary penalty cases seeking mitigation or cancellation based upon mitigating factors or arguments that challenge the basis of the claim.
Customs Administrative or Civil Forfeiture (Seizures)
Similar to Customs' civil monetary penalty actions (see above), Customs has the authority to forfeit (seize) products that are imported contrary to law if the product fails to comply with regulatory requirements imposed for health, safety, or conservation. Customs may also seize things that are used to facilitate importations contrary to law, such as vehicles or other product(s) used to conceal an illegal importation.
FDAImports.com, LLC's affiliated attorneys file petitions on behalf of clients seeking remission of products seized by Customs. The basis of these petitions depends upon the facts of each case but often involves challenges to the underlying regulatory authority upon which Customs bases the "contrary to law" finding.
Petitions for Mitigation, Cancellation, or Remission
In most cases, the importer, owner, or consignee has some defenses or grounds for mitigation, cancellation, or remission of the Customs enforcement action. In the case of liquidated damages or civil monetary penalties, the importer should seek mitigation or cancellation of the case. In the case of an administrative or civil forfeiture (Customs seizure), the claimant should seek remission of the seized goods. But the basis for mitigation, cancellation, or remission usually lies in the laws, regulations, administrative procedures, and policies of the other government agency involved -not Customs'.
Too often, an importer's petition is based solely upon Customs procedures and practices. In Customs enforcement actions that are based upon the law of another agency, careful scrutiny of the other government agency's (FDA's, USDA's, TTB's or CPSC's) actions is crucial to the petitioner's or claimant's success or failure.
Because FDAImports.com, LLC's consultants and affiliated attorneys have the unique ability to cross-link the various federal regulatory regimes, we regularly petition Customs for relief from liquidated damages claims or penalty actions with frequent success.
Although each case is unique, and no prior case can guarantee future results, our affiliated attorneys have successfully obtained cancellation and substantial mitigation of Customs cases saving clients hundreds of thousands of dollars in the process.