DHS Calls for Legislation to Allow Injunctions, Increased Penalties for Importers of Illegal Goods
Congress should revise the customs penalties statute to allow for injunctions against importers that bring in goods that violate the law, the Department of Homeland Security said in recommendations posted Jan. 13. “Due to the high volume of shipments, the lengthy penalty process, a penalty structure based solely on value, and the reliance on private entities to enforce parts of the enforcement structure, many counterfeiters willingly incur the cost of a seized shipment or paying a penalty when the U.S. Government interdicts a shipment,” DHS said. That is why “Congress should amend Section 526(f) of the Tariff Act of 1930 (19 U.S.C. 1526) to allow for the United States to seek an injunction against the importers of violative merchandise,” it said. “In addition, a civil penalty threshold to match the criminal penalty threshold should be created.”
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An aide to incoming Senate Finance Committee Chairman Ron Wyden, D-Ore., said Wyden “is seeking more information about the proposal from DHS and stakeholders.” DHS said it produced the proposals, in consultation with CBP, the Department of Justice and ICE, as part of an administration effort to fight counterfeit imports (see 2001240043, 2010130051 and 2011130017).
DOJ and DHS should work together to create a special assistant U.S. attorney (SAUSA) program aimed at enforcing violations of import laws involving counterfeit goods, DHS said in another recommendation. The U.S. attorney general and DHS secretary should “develop guidelines and inform efforts to allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecuting offenses related to import violations,” it said. That effort “should include steps to establish SAUSA programs in U.S. Attorney’s Offices that have a significant nexus to import violations,” it said. “These SAUSAs would focus primarily on enforcing criminal and/or civil laws related to the importation of merchandise contrary to the laws of the United States.”
A memo of understanding between DHS and the DOJ should also “designate CBP and ICE attorneys as SAUSAs for trade,” it said. “Similar to existing procedures, the relevant DHS Component offices responsible for staffing the SAUSA positions will be responsible for the selection of SAUSA candidates who will then be referred to local U.S. Attorney’s offices to approve the nomination for employment. These SAUSAs will allow for the increased prosecution of trade cases and deter future violative action through tangible consequences.” CBP’s Office of Chief Counsel and ICE’s Office of the Principal Legal Advisor use an SAUSA program for immigration violations, it said.
DHS also included two “relevant” CBP actions. “CBP shall revise enforcement policy in order to issue fines and penalties on an expanded set of actors with a financial interest in a shipment. This includes entities who aid and abet or assist financially in shipments: third-party platforms, financial institutions, freight forwarders, carriers, manufacturer, etc.” The agency shall also “investigate issuing summons to entities that are a party to suspect import transactions, in an effort to gain more knowledge about how those transactions moved through e-commerce platforms.”
An updated implementation plan also posted by DHS provides a detailed review of completed and planned actions. Since the June 2020 version of the plan was released, there has been progress on many of the milestones. For example a CBP proposed rulemaking “to exclude suspended and debarred individuals from participating in the Importer of Record [IOR] Program” is “currently pending formal drafting and review,” it said. A related “regulatory worksheet that proposes to exclude persons suspended or debarred by CBP from obtaining” an IOR number is also being drafted, it said. CBP is also still exploring statutory options to grant the authority to treat intellectual property rights-“infringing goods as summarily forfeited upon discovery by CBP or ICE,” it said.