Customs and International Trade Law Blog : International Trade Lawyer & Attorney : Becker & Poliakoff Law Firm : Customs Law, Border Protection

Air and ocean carriers often unintentionally transport aliens into the United States who do not have a valid passport and/or an unexpired visa.  Carriers receive a fine from U.S. Customs and Border Protection of $3,000 for every such alien illegally transported.  Carriers get an automatic reduction of 50% of the fine by signing a Memorandum of Understanding (MOU) with U.S. Customs.  Carriers must obtain and submit a newly revised MOU to U.S. Customs on April 23, 2010. 

On February 22, 2010, U.S. Customs issued a General Notice that all air and ocean carriers which had signed an MOU with either the former U.S. Immigration and Naturalization Service or U.S. Customs will no longer be effective. Only by submitting a new Fines Mitigation MOU countersigned by U.S. Customs Headquarters may fines be automatically reduced.  Carriers need to prepare now to comply with the many new changes in the MOU.

The new MOU has many changes, but the essential paragraph 3.10 still provides:

The Carrier shall maintain a reasonable level of security designed to prevent passengers from circumventing any Carrier document checks.  The Carrier shall also maintin an adequate level of security designed to prevent stowaways from boarding the Carrier's aircraft or vessel.

Without the new MOU, fines will be issued against the carrier by U.S. Customs for violating the Immigration and Nationality Act, 8 U.S.C. 1323.   Reduction of the fine greater than 50% may be obtained by the carrier when a violation occurs by establishing that further mitigating or extenuating circumstances exited at the time of the violation that warrant the relief sought.  To do so, the carrier should carefully follow the guidelines set forth at 8 CFR Part 280.

In Florida , the U.S. Coast Guard has recently issued a directive notifying all carriers that every vessel arriving at port from Haiti will be subject to a boarding and examination.  As a result, the number of discovered stoways has increased dramatically, and fines are being issued to carriers.  

Carriers may contact me at pquinter@becker-poliakoff.com  or U.S. Customs Headquarters  to obtain a copy of the new MOU.

Peter Quinter, Partner, Customs and International Trade Department (954) 270-1864

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Lesson of the day -  Don’t make an intentionally false or misleading statement to the U.S. Commerce Department's Bureau of Industry and Security (BIS)! Carol Wilkins apparently did, and will now pay $15,000 to the BIS. Important to note is that this export manager was fined individually. RF Micro Devices, Inc., the company Carol worked for, was fined $190,000 separate and apart from Carol. 

From at least 2002-2003, a responsibility of Carol’s was export control compliance for RF Micro Devices, Inc. The company had exported spread-spectrum modems which are properly classified as ECCN 5A001 to China.  Yet, the company did not obtain the required license from the BIS.

The BIS Charging Letter discussed Ms. Wilkins' false or misleading statement to the BIS. During the course of a BIS investigation, she allegedly told a BIS Special Agent that all product classifications were confirmed by an outside consultant to be EAR99 (no export license required). Apparently the consultant disagreed, and even kept the documentation in which the consultant had specifically advised Carol that the items were not EAR99.  Carol might not have realized how resourceful the BIS Agents could be as she may not have realized that BIS Agents would confirm her statements to them by doublechecking with the consultant. Even I was always taught "trust but verify".  BIS is no different in this case. 

Whenever you are going to be interviewed by a Special Agent of BIS or any other Federal law enforcement agency, always remember two things: (1) tell the truth, and (2) seek the advice of legal counsel. 

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