by M. Sigmund Shapiro
August 30, 2000
A wise man (I forget who) once said that laws were made by
geniuses and administered by idiots. I guess the axiom holds true
with the Customs regulations. At least it did in the scenario that
follows.
As an attempt to prevent overkill by the field officers, Customs
has meticulously spelled out the rules of the road regarding audits,
inspections and particularly seizures. The record is replete however
with reports of overzealous auditors, agents and import specialists
who want to rewrite what is on the written page according to their
interpretation of the directive. They combine this technique with
refusal to ask for another opinion.
The case in question concerns 50 cartons of authentic designer
ready made garments valued at about $60,000 arriving by air from
abroad. Customs performed an "intensive examination" and without
further ado seized the shipment, based on the import specialist’s
suspicion that the goods may have been be counterfeit. Now the
regulations provide that seizure of commercial goods is a last
resort. The procedure is "detention" by Customs pending a
preliminary investigation. Customs may detain for up to 30 days
after notifying the importer within five days of the decision to
detain. And even detention is not made merely on an import
specialist suspicion. The importer made every effort to explain the
circumstances to Customs before the seizure was made. He met with
the Office of Investigations to present evidence of authenticity of
the merchandise. Six days later, he was contacted by the import
specialist and volunteered to present the same information. This
offer was refused and was told that she didn’t have time to meet
with him, and did not care to receive a fax message. She even
complained about receiving a 15-page summation of the matter. Had
the import specialist taken the time to review the information, it’s
likely the seizure could have been avoided. Obviously she didn’t
"want to be confused by the facts" which might interfere with the
investigation. Once a seizure has been issued, it must run its
course. In this case, a written response from each trademark holder
and a petition for relief by the importer is necessary.
Customs ultimately learned that the goods were genuine, and
realized that they had "egg on their face" they had the chutzpah to
demand that the importer sign a "hold harmless" agreement
indemnifying the government for its outrageous and illegal actions.
The importer was faced with forfeiting the goods and going out of
business or traveling many miles to the airport to sign the
agreement in the presence of the Customs officer. As a direct result
of Customs actions, one of the importer’s suppliers, fearful of
repercussions from the trademark owner, has demanded return of his
portion, and refused to do business with the importer again. In
addition, Customs of course did not treat the garments kindly. All
of them had to be cleaned and pressed before they could be sold and
several had been misplaced. Everyone can agree that Customs has a
mandate to enforce the laws of the United States, but they are
supposed to do so with intelligence, respect for the public and most
of all, an understanding of the laws and regulations they are
enforcing. Better screening and training of staff could do much to
ease the intense Congressional scrutiny that Customs has undergoing
of late. I guess this story comes under the definition of profiling.
