Customs and International Trade Law Blog

How I Helped Release $2.5 Million Stuck in Customs

Jennifer Diaz — Thu, 03 May 2012 15:47:39 -0500

Before beginning a career in international trade, I did not ever stop to think that the t-shirt I was wearing or dishes I was using were likely made elsewhere, and went through a long complicated logistics supply chain in order to reach my local store. Little did I know that when anything goes wrong in that complicated supply chain, it would be my job to help. Recently, a client had over 2.5 million dollars worth of electronic merchandise on hold by U.S. Customs and Border Protection (Customs) for alleged intellectual property rights violations. In plain English, Customs was under the impression my client was trying to import goods with trademarks or logos they did not have the authorization to import.

When you see the symbols below, make sure you think about LICENSES to use them!!

For this client, this was a lot of money at stake, and it could have put them out of business if we did not come up with a quick solution. Instead of thinking of the band aid type solution, to solely fix this issue, we came up with a compliance plan for the client to use going forward, that would also help solve the current issue.

The compliance plan involved both a short term and long term solution. In the short term, the goal was to have the 2.5 million dollars worth of merchandise released ASAP. To accomplish this goal, we had to prove to Customs that our client had the appropriate authorization from the relevant trademark holders. (Good time for you to check over your trademark licenses, are they all in place? Do you have easy access to them if Customs comes a knockin'?)

For the long term solution, we began to work with Customs to prove that the client was a reputable importer. In this case, actions spoke much louder than words. Instead of telling Customs our client was compliant, we were able to produce documentation, and develop a relationship with the appropriately picked personnel in Customs. Through this relationship, we started a new process where the client utilized a pre-compliance program with Customs for all new products the client would import. This pre-compliance program included Customs review and internal track keeping of the client’s new products and relevant license agreements. This way, Customs had a first hand sneak peak at the new products and any potential issues would be addressed before, not after importation.

I am happy to report that all of my clients 2.5 million dollars worth of merchandise was released, and in a relatively short period of time. To date, all products that were pre-approved by Customs are typically immediately released by Customs and do not go through additional timely intensive exams.

Have you ever had a shipment on hold? What type of compliance programs do you have in place? I’d love to hear your stories, email me!

Becker & Poliakoff Attorney Jennifer Diaz Recognized As OWIT 2011 Member Of The Year

Becker & Poliakoff — Wed, 28 Mar 2012 09:08:44 -0500

The Organization of Women in International Trade (OWIT), with more 2,000 members in 26 affiliate chapters worldwide, has recognized attorney Jennifer Diaz as its 2011 Member of the Year. The Award is presented for outstanding contributions to the organization and strong commitment to advancing women in international trade and business.

The professional association also selected OWIT’s South Florida chapter – of which Ms. Diaz is immediate Past President -- as its 2011 Chapter of the Year.

In presenting the prestigious award to Ms. Diaz, OWIT cited her leadership in forging partnerships between her Chapter and prominent South Florida business and professional organizations, and for entering into an MOU with Miami Dade College to assist in developing a new export compliance program. The organization also praised Ms. Diaz’s creation of a social media chair on the Chapter board, an initiative that has resulted in one of the largest OWIT chapter fan bases on Facebook, a thriving LinkedIn presence and an active fan base on Twitter.

Ms. Diaz is the head of Becker & Poliakoff’s Customs & International Trade Practice Group. A Miami native, she graduated from Miami Beach Senior High, University of Miami and Nova Southeastern’s Shepard Broad Law Center. She is an alumnus of the Greater Miami Chamber of Commerce’s Leadership Miami program and serves on the Boards of the Miami Council for International Visitors and Miami Beach Sister Cities. In 2011, she was named a Rising Star by SuperLawyers magazine.

OWIT’s South Florida Chapter was recognized for its leadership, and helping further the OWIT mission by sharing best practices and fostering education and networking opportunities among global trade professionals. Since hosting the 2007 OWIT Global Conference, the South Florida chapter has gained prominence in the South Florida business community.

Join OWIT International as we honor the recipients of our 2011 Annual Awards.
March 30, 2012 at 12:00 EDT
Register Now
No charge to attend this complimentary webinar.

2012 International Boston Seafood Show

Becker & Poliakoff — Mon, 12 Mar 2012 07:23:16 -0500

The annual International Boston Seafood Show is today and tomorrow at the Boston Convention Center. The Show attracts 19,000 visitors, and is the largest seafood show in North America. See www.bostonseafood.com. I am again lecturing on the Food Safety and Compliance Track with emphasis on the implementation of the Food Safety Modernization Act of 2011: What every food importer and customs broker needs to know - now.

My topic is "Food Safety Compliance under the New Food Safety Modernization Act of 2011." My fellow panelists discussing the FSMA, and import safety generally, include Ted Poplawski from the FDA, Judith Webster from U.S. Customs and Border Protection (CBP), Howard Tennen from Quirch Foods, Dean Leaman of ABC Research Laboratories, and Dan Fone of NSF International. Since 80% of the seafood consumed in the United States is imported, compliance with the food safety laws and regulations that have now been implemented by the FDA, in cooperation with CBP, is critical.

There were a record number of FDA Import Alerts for seafood in 2011, and a higher number of imported shipments of seafood are now the subject of Detention Without Physical Examination (DWPE). What is surprising to many people is that the seafood is not just being stopped and inspected from China, but also Vietnam, Chile, and Canada, to name a few. Moreover, seafood fraud in many forms such as species substitution or false country of origin to avoid the payment of anti-dumping duties is now being discovered by the FDA, CBP, and NOAA. Criminal prosecutions and civil penalties by CBP are now front page news.

Thank you to Diversified Business Communications, based in Portland, Maine, for again inviting me to be a speaker at the Show. See www.divbusiness.com.

By the way, the abundance of free seafood is FABULOUS at the Show!

FDA Administrative Detention of Food... What can you do?

Becker & Poliakoff — Fri, 09 Mar 2012 11:32:09 -0500

Just a few weeks ago, FDA investigators ordered an administrative detention of a Maine company’s cold-smoked salmon product, a ready-to-eat food, during an inspection. Once the food was detained, Mill Stream Corp. agreed to voluntarily destroy the cold-smoked salmon, under FDA supervision, after inspectors found Listeria monocytogenes within the company’s facility and on its processing equipment.

Similarly, in October 2011, U.S. Marshals seized food products held at the food storage and processing facility of Dominguez Foods of Washington, Inc., in Zillah, Wash., where the seized products had first been subject to a detention order issued by FDA, following an FDA inspection of the facility that found evidence of widespread and active rodent and insect infestation in the facility's warehouse and processing area.

These administrative food detentions are becoming more and more widespread and this trend is not accidental. The January 2011 amendment to the FDA Food Safety Modernization Act (FSMA) granted the FDA a far broader authority than in years past to administratively detain foods suspected of adulteration or misbranding. According to Dara Corrigan, the FDA’s Associate Commissioner for Regulatory Affairs:

The FDA will not hesitate to take immediate steps to protect the public’s health. We will aggressively use our enforcement tools to prevent potentially adulterated food from reaching the public.

Previously, the FDA’s ability to administratively detain food products for humans or animals applied only when the agency had credible evidence that the food or feed presented a threat of serious adverse health consequences or death to humans or animals. With this expanded administrative detention authority, the FDA is now able to detain food and feed products that it has reason to believe are adulterated or misbranded. An administrative detention may last up to 30 calendar days, if needed, during which time the FDA determines whether an enforcement action is required, such as seizure of products or federal injunction against a firm.

Appealing an administrative detention is an option for claimants who act fast! After receiving the administrative detention order, an owner of perishable foods must file an appeal within two (2) calendar days and the owner of non-perishable foods has four days to file a notice of intent to file an appeal and to request a hearing with the actual appeal due within ten (10) calendar days of the receipt of the administrative detention order. A timely appeal filed correctly can result in a quicker termination of the administrative detention and thus, the return of the food article. Furthermore, it grants the owner of the food articles the opportunity to present evidence supporting the legitimacy of the detained food rather than to simply be at the mercy of the inspectors.

For more information, visit the recently published guide entitled “What You Need to Know About Administrative Detention of Foods, available at http://www.fda.gov/Food/guidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodDefenseandEmergencyResponse/ucm276871.htm.

As always, if you are unsure, consult with a professional. Failure to appeal an administrative detention of food can result in seizure. Moreover, not only may you lose the food you intended to sell, but also get fined by the U.S. Government.

A Conversation with DHS Secretary Tom Ridge

Becker & Poliakoff — Mon, 20 Feb 2012 11:03:01 -0500

On January 26, 2012, I attended an exclusive, "off the record dinner for Florida business and community leaders to discuss the growing global national security and economic challenges our country faces today." The guest speaker was none other than the first Secretary of the U.S. Department of Homeland Security, Tom Ridge. I was fascinated by what I heard from Secretary Ridge.

I had expected the first Assistant to the President for Homeland Security following the tragic events of September 11, 2001, and the first Secretary from 2003 to 2005 of the then new U.S. Department of Homeland Security to give the usual law enforcement speech about securing U.S. borders and ports, counter-terrorism, deporting illegal immigrants, etc. None of those ideas were discussed directly. Instead, the entire discussion initiated by Secretary Ridge was about promoting international trade as a way of ensuring economic security, and through our economic security, we maintain our leadership in the world. Even after I peppered him with questions, he did not waiver. Such a transformation was both surprising and impressive considering the current "5 Core Missions" of DHS.

The delightful dinner was sponsored by the U.S. Global Leadership Coalition. The USGLC is a broad-based, bipartisan coalition of more than 400 businesses, non-profits, faith-based, and community leaders led by Honorary Chair Colin Powell. I am a member of the USGLC's Florida Advisory Committee.

The new wisdom from Secretary Ridge should be seriously considered by our political leaders. But, that's just the view of one customs and international trade attorney.

2012 International Trade Law Update

Becker & Poliakoff — Mon, 06 Feb 2012 13:33:25 -0500

The prestigious, annual Georgetown International Trade Law Update takes place February 9-10, 2012 in Washington, D.C. The 2012 International Trade Update is sponsored by the Georgetown University Law Center. The conference is sure to provide you practical, topical, and timely information that you can use back at your desk - whether you are a private practitioner, government attorney, or in-house counsel.

According to the press release:

This year's program aims to provide you with the most important new developments affecting the trade and customs bars, as well as critical interpretations of those developments by senior partners at law firms, top government officials, judges, and corporate counsel.

My presentation is entitled "U.S. Customs and Border Protection Administrative Enforcement Process: Fines, Penalties, Forfeitures and Liquidated Damages Overview". Just like my fellow panelists, John Connors who is Chief of the CBP Penalties Branch, and Richard Belanger who is a partner at Sidley Austin, the presentation is aimed at the experienced customs and international practitioner who is already familiar with the basic policies and procedures of CBP.

For those interested in attending the conference, more information is available on the website.

How to Export Your Motor Vehicle From the United States

Becker & Poliakoff — Thu, 02 Feb 2012 16:56:47 -0500

Exporting your Motor Vehicle out of the U.S. - A Quick Guide

So you are moving abroad and want to bring your car with you? To comply with the provisions of 19 CFR Part 192, you will need to report this export to the Federal Government by presenting both the vehicle itself as well as a specific set of documents to U.S. Customs and Border Protection (CBP) at least three (3) days prior to export.

The following documents are required when exporting a traditional used motor vehicle abroad:

Original Certificate of Title
Original Letter of Intent - for vehicles exported by sea or air, a letter provided by the carrier and identifying the date of export (be aware of 72 hour rule), destination, vehicle owner, vehicle identification number, and authorized signature
Export Power of Attorney - If the owner of the vehicle to be exported is not presenting the documents to CBP, a CBP Export Power of Attorney must be submitted and notarized, identifying the person submitting the documentation and signed by and identifying the ultimate purchaser/owner and the vehicle (by VIN).
Letter of Authorization - If the vehicle to be exported is owned by a corporation, company or business entity, it must be accompanied by a notarized letter on official business letterhead authorizing an agent to act on its behalf.
Lienholder Authorization - if the vehicle is leased or has a lien against it, there must be specific authorization allowing for the export of the vehicle on company letterhead.
Copy of the photo identification of the person presenting the export documents.
Copy of the photo identification of the owner of the vehicle if different from the presenter.

As always, if you are unsure, consult with a professional. Penalties for failure to comply with CBP’s export requirements, aside from the inability to export your vehicle, could include monetary fines, liquidated damages, seizure of the vehicle, and/or demand for redelivery of the vehicle.

Recent FDA Developments Handbook

Becker & Poliakoff — Sun, 22 Jan 2012 12:02:15 -0500

I authored "Recent Developments in Food and Drug Law, 2012 Edition" which was just published by Thomas Reuters. It is part of a series called "Inside the Minds" written by attorney thought-leaders in food and drug law from the top law firms across the United States. It analyzes the latest food and drug laws, regulations and policies that affect food and drug companies. It also focuses on violations by persons and companies, and how to successfully defend any investigation by the U.S. Food and Drug Administration (FDA) without having to go to court.

The full title of the 408 page publication is "Recent Developments in Food and Drug Law, 2012 Ed.: Leading Lawyers on Dealing with Increased Enforcement, Keeping Up-To-Date with FDA Requirements, and Developing Compliance Practices". The book is written for C-level executives to learn the very latest trends about food and drug law enforcement and compliance requirements by the FDA. According to the press release

This Aspatore legal title provides an authoritative, insider's perspective on complying with FDA regulations and staying up-to-date on the latest trends in food and drug law.

The Food Safety Modernization Act (FSMA) gave the FDA recall authority, so companies must know how and when to do a voluntary recall and when a product is safe and effective or, alternatively, defective. The book will precisely explain the labeling requirements acceptable to the FDA and when the statements about the use of a product may be false and misleading so that the product is considered to be "mislabeled" by the FDA. Readers should understand when is a violation handled administratively by the FDA' Office of Regulatory Affairs (ORA), and when a suspected violation is investigated by the FDA's Office of Criminal Investigations (OCI). Knowing the difference, and how to handle each of these types of inquiries, audits, or investigations may make the difference in avoiding a fine or being arrested.

The book is available for only $90. Click here for a complete description or to purchase.

Can I bring in more than $10,000 to the United States when travelling?

Becker & Poliakoff — Tue, 10 Jan 2012 18:11:03 -0500

I’m coming back into the United States and I need to bring in more than $10,000. I heard that it is illegal to bring that much money into the U.S. when you travel. Am I allowed to bring in more than $10,000 to the U.S. when I travel?

The simple answer to this question is: YES.

Many people are under the impression that you are not allowed to carry more than $10,000 into the United States; this is nothing more than an urban legend. The fact is that you may legally carry any amount of money you want into or out of the United States, but there is a catch. When transporting more than $10,000, you must file a report declaring the exact amount of funds you are transporting to U.S. Customs and Border Protection. To be clear, there are no customs duties, taxes or other fees paid to U.S. Customs for the international transportation of the money; it is merely a reporting requirement to U.S. Customs.

If persons traveling together have $10,000 or more, they cannot divide the currency between each other to avoid declaring the currency. For example, if one person is carrying $5,000 and the other has $6,000, they have a total of $11, 000 in their possession and must report it.

What happens if you don’t declare your money? The penalties and repercussions can be severe. If you are stopped by a U.S. Customs and Border Protection officer and more than $10,000 is found on your person or in your belongings and this money was not declared, you run the very real risk of CBP taking all of the money you were carrying… and keeping it. Failure to report the international transportation of money is serious business. Not only could you lose your money forever, you may be subject to civil and criminal penalties.

On a side note, reporting requirements are not limited to cash dollars. The same requirements apply for various monetary instruments, including foreign currency, traveler’s checks, domestic or foreign bank notes, securities or stocks in bearer form. To learn more about the requirements of the Currency and Foreign Transaction Reporting Act, click here.

And if you are reading this blog post because you failed to report your funds and CBP has seized your money, your best bet is to contact an attorney who is knowledgeable and experienced with these matters. There is an administrative process by which you can attempt to recuperate your funds and having the assistance of a skilled attorney is key to maximizing your chance of getting your money back and minimizing your chances of exposing yourself to civil and criminal fines.

My firm and I are greatly experienced with these matters, having handled hundreds of these types of cases nationwide. This is a Federal process most often done through email, telephone and snail mail correspondence with the Federal Government and so we can help no matter where in the country you are located or your monies were seized. Although we are located in South Florida, we handle cases all over the country.

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

Becker & Poliakoff — Sun, 08 Jan 2012 18:25:06 -0500

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.

Customs Broker License Denial for Poor Credit History

Becker & Poliakoff — Sun, 08 Jan 2012 15:00:12 -0500

Hundreds of people apply every year to become a customs broker. Customs brokers are licensed by U.S. Customs and Border Protection (CBP). The process requires passing a rigorous multiple choice examination, and then passing a background investigation. For many applicants who successfully pass the examination, they are denied a license because the background investigation revealed a poor credit history and rating.

Although the application to be a customs broker is submitted to the local port, the decision letter granting or denying a broker license is issued by Allen Gina, Assistant Commissioner, Office of International Trade, CBP Headquarters in Washington, D.C. A typical denial letter would state:

After careful evaluation of the information obtained from the background investigation, we must deny your application due to your financial history.

The denial letter always cites the CBP regulation at 19 CFR 111.16 - a failure to establish the business integrity and good character of the applicant. Fortunately, the letter also cites 19 CFR 111.17 which provides the right of appeal of the denial of the customs broker license.

The appeal must be filed, in writing, and submitted to Mr. Gina no later than 60 days from the date of the denial letter. The appeal must persuasively argue why the applicant has business integrity and good character. For example, if the applicant went through a divorce, and the former spouse failed to pay certain bills which negatively affected the applicant's credit history and rating, that is an important fact that must be argued, and documented, in the appeal.

There are numerous reasons why CBP may legitimately deny a customs broker license to an applicant who has a spotty financial history. Similarly, there are numerous reasons to explain to CBP that despite what appears to be a questionable financial history, the applicant has business integrity and good character, and should still receive the customs broker license.

Bank Account Seizures by ICE and DEA for Money Laundering

Becker & Poliakoff — Fri, 30 Dec 2011 08:35:30 -0500

This past year has seen an explosion of seizures of bank accounts by the Drug Enforcement Administration (DEA) and the U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI) for alleged trade-based money laundering or "structuring". In 2011, I have handled these cases in Miami, New York, San Diego, Boston, Phoenix, San Juan, and Norfolk. The funds in the bank accounts are taken when the bank is served with a Seizure Warrant signed by a United States Magistrate Judge, based upon an affidavit prepared by the DEA or ICE Agent.

Typically, the bank (and its customer) do not get to see the Affidavit because the criminal proceeding is ongoing, and the Affidavit is sealed. The Seizure Warrant itself typically alleges that the money is subject to seizure because it is the proceeds of drug activity in violation of 21 U.S.C. 881 and 18 U.S.C. 1956.

A related legal basis for the seizure of bank accounts is 'structuring' - the deposit of $10,000 or less in cash repeatedly in a bank account to avoid the filing by the bank of a Currency Transaction Report (CTR) with the Financial Crimes Enforcement Network (FinCen), U.S. Department of the Treasury . See 31 CFR 1010.314. A CTR is FinCen Form 104. A CTR is required to be filed by all banks whenever a deposit of cash over $10,000 is made in a single day into a single account or by a customer into different accounts. Be aware that deposits of cash into multiple branches of a bank or in multiple transactions is still structuring. See 31 CFR 1010.313. Whenever a bank suspects that its depositor or customer is depositing $10,000 or less to avoid the bank filing the CTR, the bank often instead files a Suspicious Activity Report (SAR) . The SAR reports are analyzed by FinCen, and often referred to the DEA or ICE for investigation. Some of the investigations results in seizures of bank accounts as mentioned above.

Bank account holders absolutely have the right to challenge the taking of their money by the DEA or ICE. If your money has been seized, you have a right to know the legal basis for the seizure, and should, through your attorney, contact the DEA or ICE Agent, or the Assistant U.S. Attorney. In civil forfeiture cases, there is an administrative process to follow once a Notice of Seizure is issued to the bank account holder by the Fines, Penalties, and Forfeitures Office of U.S. Customs and Border Protection (CBP) or a Notice of Seizure by the DEA. If the Notice of Seizure is from CBP, file a Petition, and if the Notice of Seizure is issued by the DEA, file a Sworn Claim with the Asset Forfeiture Section located in Quantico, Virginia. The procedures of both agencies are very specific, and must be followed carefully, otherwise, your right to challenge the seizure will be lost forever.

NAFTA and Mexican Government Questionnaires to U.S. Exporters

Becker & Poliakoff — Tue, 13 Dec 2011 21:42:11 -0500

In the past year, the Mexican Government (SAT) has issued questionnaires to exporters from the United States which provided a NAFTA Certificate of Origin to the Mexican importer. The North American Free Trade Agreement (NAFTA) Certificate of Origin is always created and signed by the U.S. exporter or producer, and always provided to the Mexican importer at the time of importation so that the Mexican importer may importer the merchandise into Mexico without paying any customs duties. Years later, the Mexican Government may send a questionnaire to first the U.S. exporter, and then the Mexican importer, demanding proof that the merchandise really "originated" in the United States and properly entered Mexico without any payment of customs duties.

The problems are (1) the U.S. exporter falsely completed the NAFTA Certificate of origin either intentionally or by ignorance, (2) the U.S. exporter relied on the U.S. producer who provided misleading information to the U.S. exporter, or (3) the records establishing that the merchandise originated in the United States are not available.

I usually recommend the U.S. exporter who received a letter from the SAT of the Mexican Government to respond. Moreover, it is best to seek the assistance of the supplier of the merchandise to the U.S. exporter and the Mexican importer. If the questionnaire is not answered properly and timely, the SAT will deny the NAFTA preferential treatment, and demand payment of customs duties, late fees, interest, and penalties from the Mexican importer, plus perhaps antidumping duties. The Mexican importer may end up paying those charges to the Mexican Government agency and then seek full reimbursement, plus legal fees, from the U.S. exporter.

Brazil was the # 1 Trading Partner for the Miami Customs District in 2010

Becker & Poliakoff — Tue, 01 Nov 2011 13:00:19 -0500

Alan Becker, Board member of Enterprise and Chair of Beacon Council, with Gov Scott meets with business leaders in Sao Paulo, Brazil

Editor's Note: Thanks to Managing Shareholder Alan Becker, our guest blogger, who just returned from the Enterprise Florida Trade Mission to Brazil with Governor Rick Scott and a delegation of Florida business leaders. Alan is the Chair of the Beacon Council, MIami Dade County's Economic Development agency.

Alan S. Becker

Brazil was the # 1 trading partner for the Miami Customs district in 2010 and has been the top trading partner for more than a decade. It is Florida's # 1 trade partner with over $15 billion in annual trade. Of that, $13 billion is export to Brazil, so there is a lot of room for increased trade importing to Florida.

Many of the largest Brazilian companies already have regional or US headquarters in Miami, such as Odebrecht, Itau Bank, TAM Airlines, and many others.

Miami - Dade County is the area where most of this trade takes place, which is not surprising. Of Dade's 2.5 million residents, half are foreign born and 2/3 speak a second language in addition to English, almost all from the Caribbean, Central and South American. There are at least 50,000 Brazilians living in South Florida.

In 2010, 555,000 visitors came from Brazil just to Miami-Dade County and spent $1 billion--the first country to reach $1 billion in visitor spending. It is estimated that if there were a waiver of the visa requirement, those figures would immediately double.

Miami International Airport has more daily direct flights to South America than all other US airports combined. There are 93 weekly direct flights to cities in Brazil with 20,000 seats. The Port of Miami services 13 Brazilian Ports with cargo ships each week. With the deep dredge of the Port, making us the first ready for the post Panamax super ships, and the tunnel to move Port travel, the Port of

Miami, already # 1 in international cargo, is positioned to double its cargo capacity by 2014.

This affinity between Miami and Brazil underscores the reason why business activity is so great and is growing.

Invalidated Trademarks may Still Cause Your Products to be Seized by U.S. Customs and Border Protection, but There's a Solution.

Becker & Poliakoff — Wed, 19 Oct 2011 15:52:48 -0500

Michael De Biase

Among its other duties, U.S. Customs and Border Protection ("CBP") has the daunting task and responsibility to search and seize products that are counterfeit or otherwise infringe the intellectual property rights of original goods manufacturers. This is accomplished through CBP's Intellectual Property Rights Recordation System. As the name suggests, trademark and copyright owners record their intellectual property rights with CBP and CBP keeps records of such recordings via this system, which can be accessed online at http://iprs.cbp.gov/. Using this system, an importer can determine if any of the products that it is importing actually violate the intellectual property rights of somebody else. However, there is a big problem with this system that can cause CBP to wrongfully seize goods, thereby inflicting substantial monetary damages and significant delays in delivery times.

Intellectual property rights are not absolute and can therefore be challenged and cancelled through the U.S. federal court system. When a trademark is cancelled, the U.S. district court has to notify and direct the Director of the U.S. Patent and Trademark Office ("USPTO") to remove the trademark registration from the USPTO's registrar. Until CBP is notified that the trademark has been cancelled, CBP will continue to seize products that potentially infringe the rights of the now cancelled trademark. This causes products to be wrongfully seized, and, in turn costs the importer tens of thousands of dollars as well as significant delays.

To avoid falling victim to this situation, you must contact an attorney. An attorney can perform the proper legal research to determine whether your shipment contains products that are likely to be seized for infringement of intellectual property rights. In such an instance, the old saying "an ounce of prevention is worth a pound of cure" really holds true.

How to Comply with International Inconsistencies in FDA Cosmetic Labeling Requirements

Becker & Poliakoff — Tue, 11 Oct 2011 12:36:07 -0500

The U.S. Food and Drug Administration ("FDA") has strict labeling requirements for cosmetic products. One area that consistently causes confusion among companies that distribute cosmetic products to countries on different continents is the area of labeling. Different products have different labeling requirements depending on the application of the product, the type of ingredient being labeled, the size of the product, and the country to which the product will be shipped. For example, the rules regarding how to describe color additives for products entering the U.S. are different than those for Canada and Europe.

Fortunately, it is possible to comply with the labeling requirements for the U.S. as well as Canada and Europe using only one label. In fact, it can even be accomplished with a product bearing a label as small as that of mascara. Accomplishing this is greatly beneficial to these companies because they can take advantage of economies of scale and taper production costs by merely having one label printed to be distributed to several countries. However, this is a delicate maneuver that, if not done properly, will likely result in seizure and detention by the FDA or a foreign country's equivalent agency. This will cause delays in the shipments, and may cause civil penalties and forfeiture of the products.

To avoid this common mistake and take advantage of the fact that one label may be used throughout the U.S., Canada, and Europe, you should contact an attorney well versed in the FDA regulations. Taking this precautionary measure is an investment in greater profits and peace of mind.

Recovering Your Seized Cargo from U.S. Customs

Becker & Poliakoff — Mon, 22 Aug 2011 12:33:56 -0500

On September 8, 2011, from 2:00-3:00 p.m. EST, the Journal of Commerce will host a webinar entitled "Recovering Your Seized Cargo". The speakers will be Dennis McKenzie, Director, Fines, Penalties, and Forfeitures Division, U.S. Customs and Border Protection (CBP), Washington, D.C., and Peter Quinter, Partner in Charge, Customs and International Trade Department, Becker & Poliakoff law firm. The panel experts will explain the CBP detention and seizure process, as well as the administrative petition and judicial forfeiture process.

If you have ever had your money seized by Customs for failure to declare over $10,000, had merchandise seized for misdeclaring its value or not paying enough customs duties, had your bank account seized for alleged trade-based money laundering, or had any other items detained or seized by U.S. Customs for violating another Federal agency's regulations, you should sign up for this webinar.

The fee is only $155 for this most informative webinar taught by experts with a comprehensive understanding of the internal policies and procedures of U.S. Customs and Border Protection. A little knowledge now could save you time, frustration, and a lot of money by learning how to avoid a seizure, or when a seizure has already occurred, how to get your seized cargo back as quickly as possible.

Whatever the type of merchandise, whether it is an import or an export shipment, whether it will be sold in the United States or just moving in-transit through the United States, whether it needs a special import or export license, U.S. Customs seizes and forfeits tens of millions of dollars of merchandise every year. Download the Powerpoint presentations, and get involved in the Q&A session. Click "Recovering Your Seized Cargo" to register at the Journal of Commerce website.

Food Import Workshop in Miami on September 7

Becker & Poliakoff — Wed, 17 Aug 2011 09:39:48 -0500

The annual seminar "Practical Tools for Trade in the Food Industry" takes place at the Miami Seaport on September 7, 2011 from 8:30 a.m. to 12:30 p.m. Sponsored by the Miami-Dade County Office of Economic Development & International Trade, and supported by the Port of Miami, this year we will again focus on what importers need to know about both U.S. Customs and Border Protection and U.S. Food and Drug Administration requirements. There will be special emphasis on the new Food Safety Modernization Act of 2011.

The seminar takes place at the beautiful Port of Miami Conference Room, 1015 N. America Way, Miami. Registration may be done on-line. Questions regarding REGISTRATION may be directed to Adam Peters, Trade Development Specialist at (305) 375-5420 or apeters@miamidade.gov. Question regarding content of the seminar may be directed to Jennifer Diaz, Senior Attorney, Customs and International Trade Department, Becker & Poliakoff law firm (305) 260-1053.

TSA and Pepper Spray - A Story of What NOT to Do

Becker & Poliakoff — Sun, 14 Aug 2011 09:57:21 -0500

Our beloved Transportation Security Administration (TSA) has the responsibility of screening passengers to "ensure that certain items and persons prohibited from flying don’t board commercial airliners." This is accomplished through 43,000 Transportation Security Officers (TSOs) located at 450 airports around the United States. While I am waiting in line to be screened, there seems always to be one energetic TSO screaming at my fellow passengers to take our shoes off, remove most liquids, take our belts off, take out our laptops, etc.. it is hard to remember that the official Mission of the TSA is to "protect the Nation’s transportation systems to ensure freedom of movement for people and commerce." I do have one funny story to tell you about the TSA and a certain passenger.

While the TSA regulations specifically prohibit the carrying on board an aircraft, or even into the airport, any weapon or explosive device, a particular passenger had a pepper spray pen with him. The pepper spray pen was not detected by the TSO when the passenger's body and luggage went through those radiation-emitting devices.

That is bad enough, but what the passenger did next was a mistake. After passing through TSA, he then approached the crew of the aircraft at his gate of departure, and handed over the pepper spray pen to the gate agents with some sort of statement that the TSOs did not detect the pen during the screening process. Predictably, the passenger was then approached by law enforcement, interrogated, and not allowed to fly on that aircraft. The passenger subsequently received a Letter of Investigation from the TSA with the threat of a $11,000 penalty for attempting to compromise a security system utilized by TSA.

Seems to me that the gate agents and TSA should simply have said "thank you" to the passenger for turning over the pepper spray pen, rather than going on a witch hunt. Perhaps the lesson the TSA wants to get across to people is not to tell the truth. If the passenger had kept his mouth shut, he would have kept his pepper spray pen, not missed his flight, and not have to pay a potential penalty of $11,000. Plus, I guess now the TSOs will start yelling at passengers that the list of prohibited items includes pepper spray pens.

One more thing. While it is prohibited to carry on board an aircraft any pepper spray, you may still transport it in your checked luggage, according to the TSA website.

Homeland Security Says U.S. Customs Bonds are Insufficient

Becker & Poliakoff — Sat, 13 Aug 2011 11:28:23 -0500

The Office of Inspector General (OIG) of the U.S. Department of Homeland Security (DHS) issued a report criticizing U.S. Customs and Border Protection (CBP). In a June 2011 report entitled "Efficacy of Customs and Border Protection's Bonding Process," DHS concluded that up to $12 billion in single transaction bonds for importers may fail to be collected. Considering that approximately $2 trillion of goods are imported into the United States each year, and that CBP collects about $32 billion in duties, taxes, and fees, $12 billion is a heck of a lot of money to lose.

Let's discuss some fundamental customs laws and policies first. A bond is a contract between a principal (i.e. importer) and a surety (i.e. insurance company), with CBP serving as the beneficiary when an importer fails to pay any duties, taxes, and fees assessed by CBP on the imported merchandise. The single transaction bond amount for the importer established by CBP is typically 1 to 3 times the total value of the imported merchandise for that particular shipment, plus duties, taxes, and fees. If the importer does not pay the assessed amounts promptly, a liquidated damages claim is issued by the Fines, Penalties, and Forfeitures (FP&F) Office of CBP against the importer and the surety company.

Although in theory, this type of insurance policy should pay CBP in full every time, it does not really work that way. Blame it, in part, on anti-dumping and countervailing duty cases. The U.S. Government Accountability Office (GAO) estimates that it takes over 3 years in anti-dumping or countervailing duty cases between the initial entry of merchandise subject to an anti-dumping or countervailing duty order, and when the final duty bill is issued to the importer. Importers that are unwilling or unable to pay, or have already gone out of business, result in a loss of revenue to CBP.

According to the OIG Report, CBP has written off tens of millions of dollars "because of inaccurate, incomplete, or missing bonds" such as a lack of signatures or inaccurate transaction numbers. Moreover, it turns out that CBP is not doing a good job of keeping copies of the bonds, but often relies upon the customs brokers to do so. The OIG Report concluded that "there is a potential for collusion between the broker and the importer." Well, at least, for once, DHS and CBP don't blame this problem on those pesky customs lawyers.

So, you ask, what will happen now. No surprise this time - CBP will certainly re-evaluate its current monetary guidelines, last significantly updated in November 2010, to establishing higher bond limits, especially for food and drug products regulated by the FDA which pose a potential threat to the public health and safety. Importers should expect to see such letters from CBP's Revenue Division at the National Finance Center located in Indianapolis, Indiana, and more liquidated damages claims from the FP&F offices around the country.