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.