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

U.S. Customs and Border Protection (U.S. Customs or CBP) seizes and forfeits hundreds of millions of dollars of merchandise every year.  The IRS, DEA, U.S. Postal Service, and other Federal agencies also have the legal authority to seize and forfeit merchandise that were allegedly used illegally or were proceeds of alleged illegal activity, but U.S. Customs administrative and judicial forfeiture procedures are unique.  The answer is that seizures by U.S. Customs typically are not included within the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

The difference between a seizure under CAFRA's  rules under 18 U.S.C. 983 - The General Rules for Civil Forfeitures, and the U.S. Customs rules under the Tariff Act of 1930 and the Supplemental Rules of Admiralty, is significant. These significant differences are often misunderstood, including by attorneys who do not regularly practice in seizure and forfeiture matters.   Under CAFRA, the U.S. Government must send an administrative seizure notice to affected persons within 60 days of the seizure, but for U.S. Customs cases, there is no such requirement. In fact, unfortunately, U.S. Customs often takes 90 to days to issue the Seizure Notice letter to affected parties such as the owner of the seized merchandise. Under CAFRA, a claimant has 35 days from the date of the notice of seizure to file its administrative claim or request judicial forfeiture.  For U.S. Customs cases, the claimant must file a Petition within 30 days of the seizure notice or, if seeking judicial review of the seizure, file a claim and cost bond equal to 10% of the value of the seized merchandise, up to a maximum of $5,000.  In CAFRA cases, no court bond is required.  Once in Federal Court, for CAFRA cases, the U.S. Government's burden of proof is by the preponderance of the evidence.  In U.S. Customs cases, the Government has a lower burden of proof by establishing probable cause for the seizure, and then the burden shifts to the claimant to establish, by the preponderance of the evidence, that the property may not be forfeited. 

There are other numerous differences, a few of which are set forth in a comparison chart. One big difference is that in U.S. Customs cases, a claimant may file an administrative Petition with U.S. Customs seeking to get the seized merchandise released, and if unsuccessful, then go to Court.  In non-U.S. Customs cases, a claimant who chooses to file a Petition with the Federal agency and loses cannot then seek relief in Federal Court.  In general, filing a Petition with U.S. Customs or other Federal agency is the preferred alternative because it is often (1) faster, (2) less expensive, and (3) gives the greatest chance of success in getting the merchandise released from seizure.

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For questions or comments, complete the form below or contact me directly.

Peter Quinter, Partner, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864

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Every day, U.S. Customs and Border Protection officers at the airports, seaports, and other border crossings, stop, examine, detain, and seize merchandise from both travelers and commercial cargo importers and exporters.  The process of getting back your property can be a harrowing one fraught with bureaucratic delays.  There is, fortunately, a set of rules that U.S. Customs must follow, and knowing those rules will give you an advantage.

Customs officers may examine cargo to look for illegal drugs, counterfeit merchandise, merchandise from a country with which the U.S. has an embargo, food or medical devices not approved by the FDA, or motorcycles not approved by the EPA, just to name a few examples. 

While the cargo is being held by U.S. Customs, it is transferred to a Centralized Examination Station (CES) where the cargo is separated and intensively examined by Customs officers.  U.S. Customs has 35 days from the date of arrival of the cargo in the United States to detain the merchandise for examination.  See 19 CFR 151.16.  During that period of time, it is the obligation of U.S. Customs to advise the importer, its customs broker, and/or customs attorney with an explanation for the detention.  A written Detention Notice stating the specific reason for the detention should be issued by the U.S. Customs officer.

After 35 days, the Customs Regulations require that the cargo must be seized or released.   Unfortunately, this is too often ignored.  The problem is that U.S. Customs must rely upon other Federal agencies to give it advice whether a violation has occurred. For example, if a shipment of  motorcycles is imported from China, but Customs suspects that they may not satisfy the Environmental Protection Administration (EPA) safety requirements, digital photographs and paperwork must be sent to EPA officials in Washington, D.C. for review and recommendation.  The communication is not directly from the front line U.S. Customs officer to the EPA attorney.  Instead, it will go through the chain of command which typically involves 5 sets of eyes and hands going up the chain and then down the chain.  35 days pass quickly with so many people handing off to each other.  Hence, despite the 35 day requirement, a determination to release or seize may not be made for 60 or more days after being detained by Customs.  Getting frustrated with or repeatedly calling a particular U.S. Customs officer may not be helpful as s/he may also be waiting for an answer from someone else.  Knowing who to call and when is the key to successfully getting cargo released.

The customs attorney hired to assist the importer needs to know the internal procedures of U.S. Customs as well as the laws and regulations it enforces to identify who and when to speak to a Customs officer or other U.S. Government official.  Getting involved early in the detention process is one of the best ways to assist Customs in identifying whether or not there is a violation, and avoiding a seizure or other negative action by U.S. Customs.   For example, if the product is a suspected counterfeit, showing an Import Specialist the license from Bluetooth or Apple could avoid a lengthy, expensive, and totally unnecessary seizure process with U.S. Customs.   Getting a Licensing Officer from the Bureau of Industry and Security (BIS) of the U.S. Department of Commerce in Washington, D.C. to speak directly with the U.S. Customs officer on the Anti-Terrorism Trade Enforcement Team (AT-TET) to clarify any suspected discrepancy in the terms of the export license could avoid an unnecessary seizure.

If a violation does occur, the merchandise will be seized by U.S. Customs. The merchandise is then transported by U.S. Customs from the CES to a Seized Property warehouse.  The merchandise will remain in the warehouse until it is authorized to be released by Customs, and the warehouse is paid its storage fees.

Once the merchandise is seized, the file is forwarded by the U.S. Customs officer to the Fines, Penalties, and Forfeitures Office (FP&F).  The FP&F paralegal reviews the file and prepares a formal, written Seizure Notice. The Seizure Notice is mailed to the alleged violator.  My standard operating procedure is to notify FP&F of my representation of an importer or exporter whose goods have been seized by Customs so that the Seizure Notice is forwarded to me directly. The Seizure Notice will identify what and where the cargo was seized, as well as the legal basis for the seizure. See 19 CFR 162.31(b). 

Once a Seizure Notice is received, the "violator" is provided 30 days to file a Petition with Customs.  The Petition is the means by which the owner of the cargo may seek to persuade U.S. Customs to release the seized shipment.  The Petition may argue that a violation did not really occur, or that there was a violation, however, there were mitigating factors in favor of releasing the cargo.  The Petition should follow the guidelines set forth by U.S. Customs in 19 CFR Part 171.  U.S. Customs also published a very helpful handbook about seizure case processing.

Eventually, U.S. Customs will either grant and release the seized merchandise, or deny the Petition and not release the seized merchandise.  A Supplemental Petition or Offer in Compromise may then be submitted to U.S. Customs.

In summary, the administrative petition process with U.S. Customs can be a long one, however, there are a few key points to keep in mind:

1) Be as careful as possible to be sure imported merchandise complies with all relevant laws and regulations applicable to the particular product;

2) If U.S. Customs detains your products, contact a knowledgeable customs attorney or customs broker to actively demonstrate that there is no violation;  and

3) If U.S. Customs seizes your products, make sure your customs attorney knows the policies, procedures, and practices of U.S. Customs to pursue the release of the merchandise.

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