Archive for the ‘CBP’ Category

New Portal for Declaring Imports and Exports to CBP

Tuesday, January 31st, 2017 by Danielle McClellan

The Department of State issued a final rule which has amended the International Traffic in Arms Regulations (ITAR) to enable US Customs and Border Protection (CBP) to implement the International Trade Data System (ITDS). This system will allow importers and exporters to create only a single set of data for each import and export and they will have access the system thru an integrated web portal that will be hosted by CBP. Users may visit https:// www.cbp.gov/trade/automated for more information on the single portal. The final rule was published January 3, 2017, but was effective on December 31, 2016.

The rule makes the following changes to the ITAR (22 CRF parts 120-130):

  • Section 120.28—Listing of Forms Referred to in This Subchapter
    • Section 120.28 is revised to strike the reference to the Automated Export System and add, in its place, ‘‘U.S. Customs and Border Protection’s electronic system(s)’’.
  • Section 120.30—The Automated Export System (AES)
    • Section 120.30 is removed and reserved.
  • Section 123.4—Temporary Import License Exemptions
    • Section 123.4(d)(2) is revised to strike the reference to the Automated Export System (AES) and add, in its place, instructions to electronically file information with CBP.
  • Section 123.5—Temporary Export Licenses
    • Section 123.5(b) is revised to update certain reporting procedures and to clarify that license information will be submitted to CBP electronically.
  • Section 123.16—Exemptions of General Applicability
    • Sections 123.16(b)(4) and (5) are revised to clarify that certifications will be sent to CBP electronically and not via hard copy.
  • Section 123.17—Exports of Firearms, Ammunition, and Personal Protective Gear
    • All references to AES in § 123.17 are struck and, in their place, instructions to electronically file with CBP are inserted. Additionally, § 123.17(g)(2) and (h) are revised to update certain documentation procedures.
  • Section 123.22—Filing, Retention, and Return of Export Licenses and Filing of Export Information
    • Section 123.22 of the ITAR is revised by making certain grammatical changes and to clarify procedures for the electronic reporting of exports and temporary imports of defense articles, services, and technical data pursuant to a license or other approval. All references to AES in § 123.22 are struck and, in their place, instructions to electronically file with CBP are inserted.
    • Section 123.22(a) is revised to clarify electronic reporting procedures for exports. Paragraphs (a)(1) and (a)(2) are also revised for clarification of certain procedures.
    • Section 123.22(b)(2) is revised to clarify that emergency shipment data shall no longer be required to be sent directly to DDTC, but rather be electronically declared to CBP, which will make the data available to DDTC via an electronic data exchange.
    • Section 123.22(b)(3)(iii) is revised to update electronic reporting procedures for technical data and defense service exemptions.
    • Section 123.22(c) is revised to strike a provision relating to the return of licenses and to reorder the sub- paragraphs.
  • Section 123.24—Shipments by U.S. Postal Service
    • Section 123.24 is revised to strike references to AES and insert, in their place, instructions to electronically file with CBP. The underlying content of this section is not affected by this change.
  • Section 126.4—Shipments by or for United States Government Agencies
    • Section 126.4(d) is amended by revising the first sentence to account for electronic reporting, and by striking the second sentence.
  • Section 126.6—Foreign-Owned Military Aircraft and Naval Vessels, and the Foreign Military Sales Program
    • Section 126.6(c) is revised to clarify certain procedures relating to the declaration of information to CBP, and to remove references to form DSP–94.
    • Section 126.6(c)(5)(iii) is revised to require that the exporter provide CBP with a copy of the transportation plan under the Department of Defense National Industrial Security Program Operating Manual for shipments of classified defense articles exported pursuant to a Foreign Military Sale Letter of Offer and Acceptance. Section 126.6(c)(6)(iii) is revised to correct a punctuation error made in a previous rulemaking.
  • Section 126.16—Exemption Pursuant to the Defense Trade Cooperation Treaty Between the United States and Australia
    • Section 126.16(l) is revised to strike references to the Automated Export System and insert, in their place, instructions to electronically file with CBP. The underlying content of this section will not be affected by this change.
  • Section 126.17—Exemption Pursuant to the Defense Trade Cooperation Treaty Between the United States and the United Kingdom
    • Section 126.17(l) is revised to strike references to the Automated Export System and insert, in their place, instructions to electronically file with CBP. The underlying content of this section will not be affected by this change.

Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2017-01-03/pdf/2016-31655.pdf

Port of Export Codes Deleted in AES

Tuesday, September 6th, 2016 by Danielle McClellan

(Source: census@subscriptions.census.gov, 1 Aug 2016)

 

Please note the following Port of Export codes have been DELETED in the Automated Export System (AES) effective immediately.

  • 2772: Gateway Freight Services, LAX, CA
  • 2773: Air Cargo Handling Services, LA, CA
  • 2774: Virgin Atlantic Cargo, LAX, CA
  • 2792: DHL-HUB Riverside, CA

 

For further information or questions, contact the U.S. Census Bureau’s Data Collection Branch.

DDTC Waives Requirement for CBP to Decrement DSP-73 for Some Government Furnished Equipment

Tuesday, December 30th, 2014 by Brooke Driver

By: John Black

DDTC announced on its website that in many cases it is waiving the requirement for exporters to present DSP-73 temporary export licenses to U.S. Customs and Border Protection (CBP) to record (“decrement”) the export when “Government Furnished Equipment” is being exported for use by U.S. companies to equip personnel with certain defense articles for overseas deployment to support U.S. Government missions. This should facilitate export clearance, and should be particularly helpful for travelers carrying defense articles, because they do not have to go find a CBP officer, who typically are not close to the airline ticket counter, to decrement the DSP-73.

DDTC created specific procedures that exporters must use to take advantage of this waiver. One key aspect of the new procedure is that the application for such DSP-73s must include a specified cover letter, a copy of the pertinent government contract and a copy of the DDTC website announcement. (You may ask why you need to send to DDTC a copy of its own website announcement. The answer is if you do not do it, you do not qualify for the special procedure. Go to your room!) In addition, travelers carrying defense articles should have a copy of the DSP-73 and a copy of “the hand receipt for the equipment.” After each deployment or redeployment the traveler has 15 days to upload a special report to D-Trade regarding the use of the DSP-73.

Here is the DDTC Notice (in case it is dropped from the DDTC website and neither you nor DDTC has a copy to support your license application):

Government Furnished Equipment (GFE) For Use by Contractors:

Pursuant to §126.3 of the ITAR and only for the export of Government Furnished Equipment hand carried out of the United States for use in service of a U.S. government contract, the Deputy Assistant Secretary for Defense Trade Controls has waived the provision in §123.22(a)(2) which requires Customs and Border Protection (CBP) to decrement DSP-73 temporary export licenses under certain circumstances. This will serve as a temporary solution addressing the need for U.S. companies to equip personnel with certain defense articles when deploying overseas in support of U.S. government missions. DDTC has worked out this arrangement with CBP in order to ease the overseas transit of contract personnel to and from military facilities which do not have a regular CBP presence. Under this new policy, companies will be required to obtain a DSP-73 for all of the defense articles to be carried abroad by their personnel. CBP may review the documents as they see fit, but for DSP-73s issued under this policy CBP will not be required to decrement the license at the time of export or import. The license holder will need to account for exported equipment with regular updates to the license case in D-Trade. This policy will cover any defense articles approved under the DSP-73 and carried by the company personnel into or out of any U.S. Port of Entry.

Please remember that any export of defense articles not authorized on a license or claimed under an exemption with the required electronic filing with CBP is a violation of the ITAR and the reporting requirement in section 38(i) of the Arms Export Control Act (22 U.S.C. §2778(i)). In reviewing the scenarios for this policy, the §123.17(f) exemption did not allow for all of the equipment that was needed, and the §126.4 exemptions were not applicable to the majority of the transactions taking place.

PROCEDURE (http://1.usa.gov/1pp9Tad):

 (1) Your company must be registered with DDTC in order to apply for a DSP-73 via DTrade and to use this procedure.

 (2) Your company should estimate your projected deployment needs and allow for more items than personnel to prevent situations that would make an export in a short notice situation impossible. The DSP-73 should overestimate your needs (within a reasonable amount) to allow for the missions to be completed and the personnel deployed.

 (3) Apply for a DSP-73 as normal with the following supporting documentation.

           a. A cover letter explaining that you are supporting a U.S. government contract that requires personnel to carry defense articles issued by the U.S. Government.

 b. A copy of your service contract.

 c. A copy of this web notice.

 (4) Once the DSP-73 is approved, please read and adhere to any provisos. At the time of export, ensure that the company personnel have a copy of the license under which the equipment issued to them will be exported, in addition to a copy of the hand receipt for the equipment. (Please remember that internet access may be limited and having paper copies to present to CBP if requested will be the most expeditious way to clear Customs).

 (5) Ensure that the defense articles to be exported by the company personnel are identified on your license. Equipment that is not subject to Department of State jurisdiction will not be approved for export under these licenses. Defense articles not identified on the DSP-73 will not be authorized by this policy and may require separate licensing or authorization.

 (6) After each deployment or re-deployment you must upload additional information (within 15 days) to the license case in D-Trade. This updated information must identify the date of transaction, equipment description, and number of items that have been exported or returned.

 (7) Ensure that prior to re-deployment, your personnel are in possession of their DSP-73 and their hand receipt. This will expedite the process upon return.

 (8) This policy in no way alleviates you from any other CBP regulations, documentation, or inspections requirements.

Adding Injury to Insult: Forfeiture of Merchandise for Export Violations

Monday, December 22nd, 2014 by Brooke Driver

By: Stephen Wagner

You are a manufacturer of precision-engineered machinery.  Several weeks ago, a shipment of very expensive merchandise was detained by Customs as your freight forwarder was exporting it from the country.  It seems that you were late filing your commodity data in your EEI and one of the machines actually required a license for export, which you didn’t have at that time.  You are working to obtain the proper license and you understand you may be fined by CBP for the AES violation.

In today’s mail, however, you received a notice of seizure from Customs stating that they have seized the machine for “attempting to export” the merchandise “contrary to law.”  The machine is valued at over $100,000.  This seems like an extreme sanction for what really amounts to a paperwork violation.

Can the Government do this?  And what can you do about it?

The power of the federal Government – by and through U.S. Customs and Border Protection (CBP) – to detain and inspect merchandise arriving at the border of the United States for export (or import) is almost without limitation.  CBP also has the authority under numerous federal statutes to seize and forfeit merchandise that violates certain laws.  For example, Title 22 of the United States Code (U.S.C.), Section 401, “Illegal exportation of war materials,” states:

Whenever an attempt is made to export … articles in violation of law, or whenever it is known or there shall be probable cause to believe that any … articles are intended to be or are being or have been exported or removed from the United States in violation of law, [CBP] may seize and detain such … articles.  (22 U.S.C. § 401 (a).)

This forfeiture provision is used primarily in the ITAR context.  For merchandise falling under the Export Administration Regulations (EAR), CBP has a similar authority under 19 U.S.C. § 1595a(d):

Merchandise exported or sent from the United States or attempted to be exported or sent from the United States contrary to law … shall be seized and forfeited to the United States.

CBP exercises this power pursuant to Title 19 (U.S.C.) as the agency at the border charged with enforcing the laws of numerous agencies including DDTC, BIS and OFAC.  Recently, all of these enforcement agencies have been using their power to seize and forfeit merchandise with fervor.  In the Government’s fiscal year ending September 30, 2013, the Bureau of Industry and Security reported that forfeitures had increased to more than $18 million, up from approximately $5 million in Fiscal Year 2012.

In the case described above, the late filing of the Electronic Export Information (EEI) in the Automated Export System (AES) subjects the entire shipment to seizure.  Also, failing to have the proper license for the machine at the time of its export subjects that machine to seizure.

What can a company facing seizure and forfeiture do?

In the event of a seizure, CBP will issue a letter to the exporter and other parties known by CBP to have an interest in the seized merchandise setting forth the grounds for seizure and forfeiture and describing the alternatives that such parties have in the matter.  These alternatives include voluntarily abandoning the merchandise, filing a petition to have CBP adjudicate the matter administratively or requesting that CBP refer the matter to the United States Attorney for judicial forfeiture proceedings.

This letter, called a “Notice of Seizure,” must be read and understood very clearly by the exporter.  In particular, the notice will give a 30-day deadline for responding.  If the exporter misses this deadline, then the merchandise will be administratively forfeited to the Government, and the exporter will have relinquished its rights to contest the seizure and forfeiture.

In determining the best approach to respond to the Notice of Seizure, it is critical to consult with qualified legal counsel.  If your company’s in-house attorney is not skilled at dealing with seizures and forfeitures, the company should consult with an outside counsel who has such experience, as the laws, regulations and procedures applicable in forfeiture cases and arguments to be made in petitions and in litigation with the Government are not the standard civil litigation practice with which your general counsel or usual outside counsel may be familiar.

Options available to exporters

Depending on the facts of the case, we typically recommend that exporters facing seizure and forfeiture actions file a petition with CBP and pursue the case administratively.  In the petition, there are many arguments an exporter can make as to why the sanction of seizure and forfeiture should be mitigated and the merchandise returned by CBP.  CBP addresses many of these arguments in its Informed Compliance Publication, “Mitigation Guidelines: Fines, Penalties, Forfeitures and Liquidated Damages.”  Additional helpful information on seizures and forfeitures in general is available from CBP in its publication “Customs Administrative Enforcement Process: Fines, Penalties, Forfeitures and Liquidated Damages.”

Depending on the specific grounds for the seizure (i.e., the laws alleged to have been violated), the facts of the matter and the compliance record of the exporter, in many cases, CBP will mitigate the seizure and return the merchandise upon the payment of a penalty along with the administrative costs of the case (i.e., storage and processing charges).  Exporters typically are also asked to sign a release and hold harmless agreement.  The penalty itself can vary significantly depending on the value of the seized merchandise, the exporter’s prior compliance record and the presence of “aggravating factors,” such as criminal conviction(s) relating to the export transaction, repetitive violations of the same law or evidence of intent to violate or evade export control laws.

The benefit of seeking administrative relief from the seizure in the form of a petition to CBP is that the exporter usually will still have its judicial remedies available, in the event that CBP does not mitigate the seizure and/or return the merchandise.  In other words, if an exporter is unsatisfied with the relief offered by CBP, it can still take the case to federal court for adjudication.  It should be noted, however, that federal litigation can be very expensive and can be a very time-consuming process.  It would not be unusual for an exporter to spend $100,000 in legal fees and take 18-24 months or more for an entire judicial forfeiture case to play out in federal court.  In contrast, CBP will adjudicate most administrative petitions in no more than 3-6 months (depending on the complexity of the matter), and such processes typically cost companies only a fraction of the cost of litigation.

In the event the exporter chooses to pursue judicial review of the seizure, there are many additional arguments that could be made to contest the seizure.  In addition to all of the other arguments raised in the petition in favor of mitigation, as alluded in the letter above, a company could argue the severity of the seizure/forfeiture penalty is excessive in light of the infraction.  Under the 8th Amendment to the U.S. Constitution, “excessive fines [shall not] be imposed…”  Moreover, depending on the particular facts of the case and the value of the merchandise involved, the U.S. Attorney may not want to prosecute the forfeiture action, meaning that a favorable settlement could be reached.

Whatever course an exporter decides to take in a seizure and forfeiture action, it must act with forethought and it must act decisively.  Not only do you have only 30 days to respond to the notice of seizure, but the actions you take (including the petition you file) become part of your compliance record with CBP and the agency whose laws, regulations or requirements have been violated (e.g., BIS, DDTC and/or OFAC).

Chinese Man Attempts to Smuggle 51 Turtles in His Pants across the Canadian Border

Monday, November 24th, 2014 by Brooke Driver

By: Brooke Driver

Now here’s one you don’t hear every day, folks. Recently, Kai Xu, a Chinese-born Canadian citizen and engineering student at the University of Waterloo, attempted—unsuccessfully, of course—to smuggle 51 turtles of various species across the Detroit-Windsor border into Canada…in his pants.

And while the incident sounds more like a Road Runner episode than an export enforcement case, turtle smuggling is apparently a more common problem than you’d think, with a high demand for turtles as food or pets and one species—which was represented in the unfortunate hostages in Xu’s sweatpants—worth as much as $800 a pop.

And apparently, this is not the first time Xu has attempted to smuggle these animals (although, for his sake, we hope this was the first time the turtles were strapped to his legs and groin—ouch!). This is one in a series of incidents involving the 26-year-old Xu, who was also recently arrested, along with accomplice Lihua Lin, for attempting to fly to Shanghai with over 200 turtles hidden in Lin’s suitcase.

And while the crime is rather funny, the potential consequences aren’t. Xu, charged with smuggling, illegal trading and exporting could serve up to ten years behind bars for his crimes.

The (assuredly traumatized) turtles in question have been seized and placed with Fish and Wildlife Service agents, where they will hopefully lead a peaceful and pants-free life from now on.

Customs Publishes New Penalty Guidelines for Export Filing Errors

Friday, January 2nd, 2009 by Guest Author

On January 2, 2009, U.S. Customs and Border Protection (CBP) published penalty guidelines for violations of the Foreign Trade Regulations (FTR) issued by the U.S. Census Bureau (Census), which were amended on June 2, 2008, and became effective as of September 30, 2008. The amended FTR adopted new measures, such as a voluntary disclosure program, to mitigate violations of the FTR, which are subject to a civil penalty not to exceed $10,000 per violation. Violations can include the failure to file or the delayed filing of export information in the Automated Export System (AES) and the filing of false or misleading information in AES.

Authority to issue civil penalties to enforce the FTR has been delegated to CBP, which has published guidelines on how it will assess penalties for certain violations based on four mitigation schemes outlined as follows:

  • Penalties for the Failure to File Electronic Export Information (EEI) in AES
  • Penalties for the Late Filing of Electronic Export Information (EEI) in AES
  • Penalties for Various Other FTR Violations
  • Penalties for Carrier Filing Failures

Each penalty scheme follows a sequence of recorded offenses, typified by the following one for failure to file EEI:

  • First Recorded Offense – $750 to $2,500
  • Second Recorded Offense – $1000 to $3500
  • Third Recorded Offense – $1500 to $5000
  • Fourth and Subsequent Recorded Offense – $2000 to $10,000

(more…)

Department of Homeland Security Effects Name Changes for ICE/CBP

Tuesday, April 17th, 2007 by Jill Kincaid

As of April 17, 2007, The Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection are no longer “bureaus.” The Department of Homeland Security announced that the official names for these departments will now be U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). All official documents referring to these agencies should now use these names/acronyms.

Changes to Harmonized Tariff System Implemented February 3, 2007

Saturday, February 3rd, 2007 by John Black

Gentlemen (and Ladies): Start Your HTS and Schedule B Classification Engines…

The International Trade Commission has announced that the final version of the 2007 Harmonized Tariff System (HTS)l became effective on February 3, 2007. This will include the World Customs Organization (WCO) changes. Changes will affect about 10% of the eight-digit codes. Importers have until February 20, 2007 to begin using the new HTS codes.

The ITC has posted a draft version on its website, but has committed to posting a the final version by January 22, 2007. The US Customs and Border Protection (CBP) will allow a 17-day grace period for importers to transition to the new system. This grace period will end on February 20, 2007. These implementation plans are posted on their website.

Bottom Line for Exporters:

The export version of the HTS (the Schedule B) was published by the Census Bureau on their website at the beginning of the year. The AES system will accept the old Schedule B Numbers through March 4, 2007.

Say Goodbye to SEDs, Mandatory AES Nearly Here

Thursday, September 15th, 2005 by Scott Gearity

In what may truly be the most long-anticipated regulatory change in the export control arena, the Census Bureau is finally nearing its goal of mandating use of the Automated Export System (AES) in place of paper Shipper’s Export Declarations (SEDs) across-the-board. AES is already mandatory (since 2003) for the export of items on the United States Munitions List (USML) and the Commerce Control List (CCL), as well as rough diamonds subject to the Kimberly Process. In a February 17, 2005 notice of proposed rulemaking, Census reiterated its intent to extend the AES requirement to cover all exports from the US which currently require a SED. The threshold triggering the need for a SED under the current Census regulations – a value of more than $2,500 classified under an individual Schedule B or Harmonized Tariff Schedule (HTS) commodity classification code – remains unchanged. (After all these years, an adjustment for inflation would be nice.) Exports valued at less than $2,500, but which require either a license from Commerce or a license or license exemption from State will continue to require AES reporting (data submitted via AES is now called “Electronic Export Information” or EEI).

Census solicited feedback with their February proposed rule, which they received in spades from over forty different exporters, carriers, trade associations, and even other federal government agencies. For those seeking to understand every nuance, impact, and possible criticism of the Census proposal, the comments are an excellent resource. (Although, unfortunately, when Census scanned the comments into Adobe Acrobat files they did not turn on the optical character recognition feature which would have made it possible to easily locate references to particular words or phrases.) I particularly recommend the response offered by the Regulations and Procedures Technical Advisory Committee (pdf, RPTAC), which identifies numerous inconsistencies and ambiguities in the Census proposal, and the comments from US Customs and Border Protection (pdf, CBP) which argues that even the very limited exemptions from filing EEI provide an unacceptable loophole for bad actors to exploit. CBP wants all exemptions eliminated, including the sub-$2,500 exclusion.

Census is expected to issue a final rule as early as this month, which will most likely go into effect sometime around the first day of the new year.