This blog will address recent Court of International Trade (CIT) cases on this very topic and will be a part 2 to our previous blog covering U.S. Customs and Border Protection (CBP) seizures of drug paraphernalia.  

CBP Authority 

CBP has the power to seize “drug paraphernalia” products.  This does not only cover importations of products for commercial use, but also items for personal use with individuals traveling internationally seeking entry into the United States.  CBP’s website section: Know Before You Go – Prohibited and Restricted Items encourages individuals to contact CBP prior to traveling and make sure that prohibited or restricted items, such as drug paraphernalia, are not brought into the country, as they are not only subject to seizure pursuant to 19 U.S.C. 1595a(c), but those individuals bringing in the items are subject to a monetary penalty pursuant to 19 U.S.C. 1595a(b).   

Latest CIT Decisions Regarding Marijuana-Related Accessories 

There are two decisions by the Court of International Trade that have significant implications for importers of marijuana-related paraphernalia. The first case, Eteros Technologies v. United States, No. 21-00287, concerns the interplay between federal and state laws governing marijuana-related drug paraphernalia. Pursuant to 21 U.S.C. § 863, it is illegal under federal law to import, export, or sell drug paraphernalia, which includes items used to manufacture, plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal controlled substances.  

In Eteros, the court granted the plaintiff’s motion for judgment on the pleadings and denied the government’s cross-motion, finding that the plaintiff’s products (which included vaporizers, grinders, and rolling papers) were not drug paraphernalia under federal law. The court noted that while the plaintiff’s products could potentially be used to consume marijuana, they were also commonly used for other legal substances, such as tobacco. Moreover, the court found that the plaintiff’s products were marketed and sold in compliance with state laws governing marijuana-related products, which suggested that the products were intended for lawful use. 

In Keirton U.S.A., Inc. v. United States, No. 21-00452, the court discussed exclusion from entry into the United States of “parts and components” used to manufacture a product called the “Twister Trimmer,” which is primarily used to process marijuana plants. The plaintiff, Keirton, challenged the denial of its protest of the exclusion by CBP. The court’s jurisdiction was pursuant to 28 U.S.C. § 1581(a), which grants the exclusive court jurisdiction over actions arising under federal customs law. The standard of review was de novo based on the record developed before the court. 

In Keirton, the court granted the plaintiff’s motion for judgment on the pleadings and denied the government’s cross-motion, finding that the exclusion of the plaintiff’s parts and components was not supported by substantial evidence. The court noted that CBP had relied on a letter from the Drug Enforcement Administration (DEA) that stated that the plaintiff’s products were “designed and marketed for use with marijuana.” However, the court found that the DEA’s letter did not provide any specific evidence that the plaintiff’s products were intended to be used with illegal drugs, and that the plaintiff had presented evidence that its products were used in the legal cultivation of hemp, which is a non-psychoactive strain of the cannabis plant. 

Conclusion 

The Esteros and Keirton cases highlight the complex legal landscape surrounding marijuana-related products, and the importance of careful compliance with federal and state laws governing these products.  

Importers of marijuana-related paraphernalia should: 

• consult with competent customs counsel prior to importation and at the pre-compliance stage to carefully review and comply with both federal and state laws governing their products, including any licensing or regulatory requirements, ensure that their products comply with applicable laws and regulations and consider taking proactive measures to mitigate the risk of customs seizures like requesting a CBP Binding Ruling prior to importation. 
• be aware of the potential risks of customs seizures at the time of importation. 

• be aware of the potential for CBP to rely on guidance, policy or letters from other federal agencies, such as the DEA, in making their determinations. 

If you have any questions about the importation of merchandise into the U.S., contact info@diaztradelaw.com. 

Many companies mistakenly believe that registering a trademark or copyright with the U.S. Government provides sufficient protection and remedies. However, there is an additional step that can significantly enhance protection—recording trademarks or copyrights with U.S. Customs and Border Protection (U.S. Customs).  

This blog explores the distinct goals of these processes and the advantages of recording intellectual property with the U.S. Customs. 

I. Registering with USPTO and Recording with U.S. Customs: Different Goals

• Registering with the U.S. Patent and Trademark Office (USPTO) or U.S. Copyright Office gives public notice of ownership. 
• Recording with U.S. Customs aims to prevent unauthorized importation of merchandise bearing the registered intellectual property. 
• U.S. Customs serves as a critical partner in halting counterfeit and infringing products from entering or leaving the United States.

II. Benefits of Recording Trademarks or Copyrights with U.S. Customs

Seizure and Monitoring: 

• U.S. Customs monitors and seizes infringing merchandise at ports of entry, alleviating the burden on trademark or copyright holders. 
• This proactive approach eliminates the need to individually locate and prosecute every unauthorized importer, distributor, or retailer, safeguarding intellectual property rights.

Impressive Results in IP Protection: 

• In 2021, U.S. Customs seized over 27,000 shipments with an estimated manufacturer’s suggested retail price (MSRP) of $3.3 billion. 
• Collaboration with the Intellectual Property Rights (IPR) Center led to 388 arrests, 155 indictments, and 100 convictions related to IP crimes. 

• Apparel/accessories accounted for 30% of seized merchandise, with watches and jewelry valued at over $1.18 billion. 
• Notably, U.S. Customs seized counterfeit and unapproved COVID-19 products, reflecting their adaptability to emerging challenges. 
• Approximately 57% of counterfeited goods seized in 2021 were manufactured in China, amounting to an estimated MSRP value of $1.9 billion.

Authority to Issue Fines and Prosecute: 

• U.S. Customs possesses the authority to impose monetary fines on individuals involved in facilitating the introduction of seized and forfeited counterfeit merchandise into the United States. 

• U.S. Customs can request the U.S. Attorney’s Office to criminally prosecute those engaged in illegal activities under the Trademark Counterfeiting Act of 1984. 
• Penalties for first-time violators include up to ten years imprisonment and/or a $2 million fine, while repeat offenders face up to 20 years imprisonment and/or a fine of up to $5 million. 

International Raids and Cooperation: 

• U.S. Customs collaborates with foreign law enforcement agencies and coordinates raids on counterfeit production facilities globally. 
• Customs officers stationed at American embassies worldwide regularly share information for the criminal prosecution of manufacturers and exporters of counterfeit goods. 

III. Customs e-Recordation System and Gray Market Protection
 

Trademark and copyright recordations are filed online through the U.S. Customs’ IPR e-Recordation system, adhering to the regulations outlined in 19 C.F.R. Part 133. 

The following is a checklist of the information necessary to submit an trademark or copyright recordation with CBP: 

• Description of trademark or copyright registered with the USPTO 
• USPTO Registration Number 
• Country of manufacture of protected goods bearing the trademark or country of manufacture of genuine copies or phonorecords of the protected copyright work 
• Names of any parent companies, subsidiaries, or other entities that are under common control with, or share any type of ownership interest or relationship with, the U.S. trademark owner, or names of all parties authorized to use or reproduce the copyrighted work 

For those eligible, it is worthwhile to pursue “gray market” protection, which pertains to genuine products bearing a trademark or brand name approved for use in a country other than the U.S. Gray market goods are different from goods bearing counterfeit markets because goods bearing counterfeit marks are never genuine. According to CBP guidance, CBP provides limited protection to trademark owners against importations of certain gray market goods. Only trademarks and trade names that are recorded with CBP are entitled to gray market protection, and gray market status is determined at the time of recordation with CBP. Gray market protection is only offered if you have the following in place: 

• The U.S. and foreign trademarks are not owned by the same person 

• The U.S. and foreign trademark owners are not a parent or subsidiary, or otherwise subject to common ownership or control 

Currently, Phillip Morris is an example of a company that has been able to meet this stringent burden and CBP offers its trademarks gray market protections. The image below is a search result from the CBP IPRS database. 

As a final thought, it is extremely beneficial for a company to record its registered trademark or copyright with CBP, as CBP may be a company’s greatest, and most cost effective ally, when it comes to trademark and copyright enforcement. For help with any pre-compliance matters such as the CBP recordation process or for assistance with enforcement actions such as seizures and penalties, please contact info@diaztradelaw.com and visit our website www.diaztradelaw.com.

UFLPA

The Uyghur Forced Labor Prevention Act (UFLPA) establishes a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in the Xinjiang Province of China or by an entity on the UFLPA Entity List are prohibited from importation into the United States under 19 U.S.C. § 1307. However, if an Importer of Record can demonstrate by clear and convincing evidence that the goods in question were not produced wholly or in part by forced labor, fully respond to all CBP requests for information about goods under CBP review and demonstrate that it has fully complied with the guidance outlined in this strategy, the Commissioner of CBP may grant an exception to the presumption.

Clear and convincing evidence is a higher standard of proof than a preponderance of the evidence, and generally means that a claim or contention is highly probable. See e.g., Colorado v. New Mexico, 467 U.S. 310 (1984) (a forced labor case holding that complainant did not meet “clear and convincing” burden of proof because it failed to show that the evidence is highly and substantially more likely to be true than untrue; rather, the fact finder must be convinced that the contention is highly probable).

CBP will employ a risk-based approach, dynamic in nature, that prioritizes the highest-risk goods based on current data and intelligence. Currently the highest-risk goods include those imported directly from Xinjiang into the United States and from entities on the UFLPA Entity List. CBP will also prioritize illegally transshipped goods with inputs from Xinjiang, as well as goods imported into the United States by entities that, although not located in Xinjiang, are related to an entity in Xinjiang (whether as a parent, subsidiary, or affiliate) and likely to contain inputs from that region.

Below is a list of high-priority sectors for enforcement:

1. Apparel
2. Cotton and Cotton products
3. Silica-Based Products (including polysilicon)

• Silica is a raw material that is used to make aluminum alloys, silicon, and polysilicon, which is then used in buildings, automobiles, petroleum, concrete, glass, ceramics, sealants, electronics, solar panels, and other goods.

4. Tomatoes and downstream products

In addition for general guidance on how CBP will be implementing the UFLPA, please refer to our prior article “Uyghur Forced Labor Prevention Act (UFLPA): What You Need To Know.”

DHS Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the PRC.

On June 17, 2022, per statutory requirement , the U.S. Department of Homeland Security (DHS) published the Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China. The purpose of this publication is to provide guidance as to how the UFLPA will be implemented, and how it plans to prevent the importation of goods made with forced labor to enter into the United States. Below is a summarized guidance for importers with recommendations and guidance as to what evidence importers may provide to rebut the presumption that the goods were made with forced labor under the UFLPA as mentioned by DHS’ June 17, 2022 and earlier guidance published on June, 13, 2022 by CBP  of evidence required. The guidance for importers provided information on three topics:

1) Due Diligence,

2) Supply Chain Tracing, and

3) Supply Chain Management

What does due diligence mean?

DHS stated that for purposes of the guidance, due diligence includes assessing, preventing, and mitigating forced labor risk in the production of goods imported into the United States. An example of effective due diligence, may include the following elements:

• Engage stakeholders and partners
• Conduct a Forced Labor Risk Assessment
• Develop a written code of conduct

To perform a forced labor risk assessment, importers map their supply chains to identify any steps within the chain at risk of using Forced Labor. Such factors used to determine whether a risk exists are, but not limited to:

• Origin of imported goods or any raw materials or components in the imported good.
• Transactions among entities along the supply chain tied to the specific imported goods.
• Locations and identities of entities in the supply chain.

A written code of conduct should provide a framework on how you address the risk of forced labor in you supply chain. In addition, DHS recommends the written code of conduct be incorporated into supplier contracts. We separately recommend that you include your conditions on your purchase order as well.

Importantly, DHS noted that for supply chains that touch the Xinjiang or involve entities that use labor transferred from Xinjiang, the code of conduct MUST explicitly forbid the use of forced labor. Furthermore, as mentioned in our prior DTL post “U.S. Customs Targets Use of Forced Labor ,” importers should review the DOL’s Comply Chain  principles and create a compliance system as a business practice.

What Does it Mean to have an Effective Supply Chain Tracing System?

DHS has defined supply chain tracing, as the ability to demonstrate chain of custody of goods and materials from the beginning of the supply chain to the buyer of the finished product. An effective Supply Chain Tracing system is one that identifies who their suppliers are and labor sources at all levels of the supply chain system. Generally, there are three common practices importers may engage in for effective supply chain tracing:

1. Mapping: Importers should be able to map out their entire supply chain, including suppliers of raw materials used in the production of the imported good or material. Mapping allows the importers to identify who is doing the work at each step in the process of the supply chain and under which conditions the work is being done.
2. Identity preservation: This requires importers to preserve each product input to be packaged, processed, and traced separately from other product inputs or modifications throughout the supply chain. However, under this method product inputs are not allowed to be commingled at any point in the supply chain.
3. Segregation: This approach allows importers to commingle inputs, as long as each input to be commingled is fully traced and documented. It is essential to demonstrate that the inputs are free of forced labor prior to commingling. As an example, importers should have readily available evidence that indicates the source of each component of the good and documents showing how the imported goods was made from raw materials to finished good, by what entity, and where.

Supply Chain Management Measures

Importers should also have Supply Chain Management Measures in place, that reflects the measures taken to prevent and mitigate identified risks of forced labor. DHS identified that effective measures include:

1. Having a process to vet potential suppliers for forced labor prior to entering a contract with them; requiring that supplier contracts necessitate corrective action by the supplier if forced labor is identified in the supply chain; and
2. Outlining the consequences if corrective action is not taken, such as termination of the contractual relationship.
3. Having access to documentation, personnel, and workers for verification of the absence of forced labor indicators, including at the recruitment stage.

DHS noted as well that, under 18 U.S.C. Section 1589 (b), failure to take appropriate remedial action could expose an importer to potential criminal liability if the importer continues to benefit, financially or by receiving anything of value, from participating in a venture engaged in forced labor, while knowing of or recklessly disregarding the forced labor.

For additional guidance as to the type and nature of evidence that CBP will require if the goods are subject to the UFLPA, please refer to the following:

• Xinjiang Supply Chain Business Advisory
• DTL Article: “Importers: If you Can’t Answer these 12 Questions on Forced Labor You’re In Trouble”
• U.S. Department of Labor Sweat & Toil App 

Contact Us

Diaz Trade Law has significant experience in a broad range of import compliance matters including forced labor issues. For assistance with importer due diligence in relation to forced labor requirements; or for assistance in submitting documents to dispute the use of forced labor, contact our Customs and International trade law attorneys at info@diaztradelaw.com or call us at 305-456-3830.

Apparel

• Nike has ended 2021 as the most valuable apparel firm globally. According to data presented by FinancePR.com, the American outfit achieved a $30.44 billion valuation in 2021, placing it at the helm of the top ten garment firms worldwide.

CBP 

• On November 30, 2021, U.S. Customs and Border Protection officers in Cincinnati seized a shipment containing counterfeit designer jewelry and scarves. The fakes, which came from China, would have been worth a total of $3.09 million had they been genuine.
• On December 6, 2021, a garment importer based in downtown Los Angeles was sentenced to 12 months and one day in federal prison for scheming to undervalue imported garments and avoid paying duties to the United States, and failing to report income on tax returns and large cash transactions to the federal government.
• On December 13, 2021, Chris Magnus was sworn in as Commissioner of United States Customs and Border Protection following his Senate confirmation last week. Magnus becomes the fifth confirmed CBP Commissioner since the law enforcement agency’s creation under DHS in 2003.
• CBP has reorganized all Informed Compliance Publications (ICPs) on CBP.gov under each applicable Center of Excellence and Expertise.
• U.S. Customs and Border Protection is modernizing the ACE Secure Data Portal over multiple phases in 2022. The modernization effort will entail the transition of existing functionality to an upgraded platform, offering easier use and better performance.
• On December 27, 2021, CBP issued guidance on the Department of Commerce’s December 9, 2021 interim final rule revoking 30 previously granted Section 232 General Approved Exclusions.

U.S. Census Bureau

• On January 5, 2022 Robert Santos was sworn as the U.S. Census Bureau’s 26th director, becoming the first Latino person to serve in the role. This appointment follows the U.S. Senate confirmation Nov. 4, 2021, with Santos’ term set to last for five years.

China

• On December 2, 2021, U.S. Customs and Border Protection announced that it will deny requests for extensions of time for liquidation based on pending litigation before the U.S. Court of International Trade concerning challenges to additional customs duties imposed under Section 301 on goods imported from China.
• On December 23, 2021, President Biden signed The Uyghur Forced Labor Prevention Act banning imports from the Xinjiang Uyghur Autonomous Region which has sparked debate over how the law will be enforced and its potential ramifications.
• On December 20, 2021, the Office of Foreign Assets Control (OFAC) sanctioned 10 Chinese citizens pursuant to the Hong Kong Autonomy Act of 2020 sanctioning individuals that materially contribute to China’s failure to preserve Hong Kong’s autonomy.
• On January 7, 2022, China fell short on trade commitments to step up purchases of U.S. goods and services creating a dilemma for the Biden administration as it could potentially reinstate certain tariffs or ignore the shortfall.

Department of Commerce 

• On December 9, 2021, the Department of Commerce issued an interim final rule amending its regulations pertaining to the procedures and rules related to Article 1904 of the North American Free Trade Agreement (NAFTA) with appropriate references to the United States-Mexico-Canada Agreement (USMCA).
  • Comments are due January 10, 2022

FDA

• The FDA is seeking early feedback on a plan to assist stakeholders, including industry, health care professionals, and patients, with a smooth transition away from the temporary emergency measures of the pandemic to the eventual resumption of normal operation.
  • Comments are due March 23, 2022
• Elizabeth Miller, assistant commissioner for medical products and tobacco operations in FDA’s Office of Regulatory Affairs, announced at a recent FDLI enforcement conference that the FDA will resume unannounced and hybrid inspections of foreign facilities in 2022.
• On January 1, 2022, the Food and Drug Administration (FDA) opened the Voluntary Qualified Importer Program (VQIP) for FY 2023. Participants in the fee-based program receive expedited review of animal and human foods entering the United States.
  • Contact DTL at info@diaztradelaw.com for registration assistance.
• On January 12, 2022, the U.S. Food and Drug Administration declared they are revoking the standard of identity for French dressing, reacting to a citizen petition from the Association for Dressings and Sauces that shared information documenting that the standard is outdated. The agency is now finalizing the proposed rule issued in December 2020 based on the conclusion that revoking the standard will allow for greater innovation and flexibility of products on the market.
  • • The final rule is effective February 14, 2022

HTSUS 

• On December 23, 2021, President Biden signed a Presidential Proclamation modifying the Harmonized Tariff Schedule of the United States to reflect international agreements.
• On December 27, 2021, CBP issued guidance regarding the U.S. Trade Representative’s conforming amendment to a previously granted and extended Section 301 product exclusion, replacing HTSUS number 3401.30.5000 with HTSUS number 3401.11.5000 effective November 30, 2020

Port Everglades

• On January 7, 2022, Port Everglades announced the arrival of the Mediterranean Shipping Company’s MSC Rachele which brought a record 4,849 containers into port.

Sanctions 

• On December 15, 2021, President Biden issued an executive order imposing sanctions on foreign persons involved in the global illicit drug trade.
• On December 16, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned eight Chinese technology firms for being part of the Chinese Military-Industrial Complex.
• On January 12, 2022, the U.S. Department of Treasury’s Office of Foreign Assets Control designated five North Korean individuals responsible for procuring goods for North Korea’s weapons of mass destruction (WMD) and ballistic missile-related programs. These actions are intended to target and prevent the advancement of North Korea’s WMD and ballistic missile programs and ongoing efforts to cease illegal procurement of weapons overseas.
• On January 11, 2021 the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced a settlement with Sojitz Limited (“Sojitz HK”), a Hong Kong, China-based company that engages in offshore trading and cross-border trade financing. Sojitz HK agreed to remit $5,228,298 to settle its potential civil liability for apparent violations of the Iranian Transactions and Sanctions Regulations (ITSR).

USTR

• On December 21, 2021, the Office of the U.S. Trade Representative (USTR) released its annual congressional report assessing Russia’s adherence to its World Trade Organization commitments such as non-discriminatory practices, more open trade, and fair competition. The report notes that in the past years Russia had further extended its control over the Russian economy and tightened restrictions on trade.
• On January 4, 2022, United States Trade Representative Katherine Tai announced that the United States has prevailed in the first dispute settlement panel proceeding ever brought under the United States-Mexico-Canada Agreement (USMCA).  The panel ruled that Canada is breaching its USMCA commitments by reserving most of the in-quota quantity in its dairy tariff-rate quotas for the exclusive use of Canadian processors.
• On January 10, 2022 United States Trade Representative Katherine Tai and United States Secretary of Agriculture Tom Vilsack announced the government of India has agreed to allow imports of U.S. pork and pork products into India.

If you have questions about these updates, contact our Customs and International trade law attorneys at info@diaztradelaw.com or call us at 305-456-3830.

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Below we share some of our top 2021 success stories with you.

Successfully Mitigated Liquidated Damages Claims 

• For failure to timely refile rejected entries subject to AD/CV duties:
  • After DTL’s strategic involvement CBP substantially mitigated approximately $5 MILLION in claims down to $26,365.00, successfully saving our client over $4.7 MILLION dollars
  • Our client received 36 liquidated damages notices from CBP totaling over $567,000. After Diaz Trade Law’s successful negotiation with CBP, all 36 cases were canceled by CBP, saving our client $over $567,000!!
• CBP sent our client a liquidated damages claim in the amount of $150,000. As a result of Diaz Trade Law’s successful petition, CBP mitigated the liquidated damages claim down to $1,500!
• CBP issued a liquidated damages claim in the amount of $50,000.00. After DTL successfully petitioned CBP, the claim was cancelled!
• CBP issued a liquidated damages claim in the amount of $36,033.00. After DTL successfully petitioned CBP, the claim was mitigated to $360.33 (the best potential mitigation!).

CBP Detention Assistance 

• Mere days after being retained, Diaz Trade Law successfully assisted in negotiating with CBP and numerous trademark owners proving that our clients detained goods (collectively valued over $1,000,000.00) were legitimate, receiving either consent TM holder, and/or convincing CBP to release legitimate merchandise that should not have been detained.
• After CBP detained our client’s electronic merchandise to verify admissibility with the Department of Transportation (DOT)
  • CBP released the electronic goods after DTL proved the merchandise, LED driving lights, were eligible for an “off road” use exception and DOT providing such confirmation.
• After CBP detained our client’s electronic merchandise to verify the validity of a trademark on the product packaging.
  • Diaz Trade Law proactively communicated with the trademark holder and CBP, who, with the authorization of the trademark holder, permitted the importer to manipulate the merchandise and import the goods saving our client from a costly and lengthy seizure case that potentially exposed our client to CBP penalties.
• After CBP detained our client’s electronic merchandise to verify the validity of a trademark on the product packaging.
  • After Diaz Trade Law’s immediate involvement in arguing the product was “confusingly similar” and not counterfeit, DTL persuaded CBP to apply the relief afforded to “confusingly similar” seized merchandise and ultimately CBP permitted the exportation – which is relief that is rarely granted for detained products. DTL saved our client from a seizure case and potential penalties.
• CBP detained 28 containers of our client’s cargo.
  • Diaz Trade Law successfully negotiated with CBP to permit the goods to be reexported and avoid substantial demurrage expenses.

4647 Responses 

• CBP issued our client a CBP Form 4647 – Notice to Mark, because its electronic car accessories labels had both a country of origin marking and a “Designed in the USA” claim (in separate locations on the label).
  • After 48 hours of Diaz Trade Law’s successful escalation and negotiation with the Electronic Center of Excellence and Expertise, CBP granted a rarely used marking waiver permitting the merchandise to be imported as is, saving our client both money and time.
• CBP issued our client a CBP Form 4647 – Notice to Mark, because over 1,000 electronic car accessory units did not bear a country of origin marking.
  • Diaz Trade Law successfully and efficiently guided our client through the marking process. Ultimately, the goods were marked and authorized for distribution within recording timing – less than 10 days from the issuance of the 4647, saving our client both money and time.
• CBPO’s at Port Everglades detained two of our client’s shipments and issued two separate CBP Form 4647s – Notices to Mark because the imported merchandise valued at $98,744.00 did not bear a country of origin marking.
  • Diaz Trade Law successfully and efficiently guided our client through the marking process. Ultimately, the goods were marked and authorized for distribution with record timing – within 7 days from the issuance of the 4647, saving our client both money and time.
• Diaz Trade Law successfully assisted our client in responding to CBP’s Notice to Redeliver (CBP Form 4647) and provided CBP confirmation that the intellectual property rights displayed on the goods was authorized and our client’s merchandise was released in record timing!

Successfully Assisted Numerous Importers Battle Alleged Intellectual Property Rights Violations

• Our client’s merchandise was seized by CBP due to an alleged trademark violation.
  • After Diaz Trade Law’s successful petition, CBP issued a decision authorizing our client to relabel and export its legitimate merchandise.
• CBP detained several shipments of our client’s cargo for both Country of Origin (COO) and Intellectual Property Rights (IPR) reasons.
  • Diaz Trade Law advocated for our client and within less than one week convinced CBP to release our client’s legitimate merchandise detained at numerous ports of entry nationwide.
• Our client’s designer handbags were seized by CBP due to an alleged counterfeit violation.
  • After Diaz Trade Law’s successful petition, proving that the handbags were legitimate, CBP released our client’s legitimate merchandise.
• CBP detained our client’s goods valued at $98,744.00 for an alleged IPR validation.
  • Our firm immediately communicated with the appropriate CBP CEE and submitted evidence supporting the legitimacy of the imported goods requesting their immediate release. The CBP CEE agreed with our request and recommended the local port release the shipment, saving our client from a costly and lengthy seizure case.
• Diaz Trade Law successfully negotiated with CBP on behalf of an aftermarket car part importer to permit the exportation of goods detained for alleged IPR violations, saving the importer from a costly and lengthy seizure and potential penalty.
• Our client imported electronic merchandise which contained a trademark-violating processing system.
  • After Diaz Trade Law’s successful intervention, Diaz Trade Law received authorization from the trademark holder to permit the violative components to be removed and destroyed, and the larger shell merchandise to be imported in its current form. CBP agreed to these terms, and issued a disposition order authorizing the manipulation and release of the goods as Diaz Trade Law had requested.

Successfully Mitigated Penalty Actions Issued by CBP to our Clients 

• For importing noncompliant Wood Packaging Material:
  • $91,714 mitigated to 3% of penalty to $2,751.42, saving our client $88,962
  • $69,900 mitigated to 3% of penalty to $6,990, saving our client $60,000
  • $28,478 mitigated to 10% of penalty to $2,847, saving our client $25,631
  • $27,857 mitigated to 10% of penalty to $2,786, saving our client $25,071
  • $19,980.00 mitigated to 10% of penalty to $1,998, saving our client $17,982
• For filing incorrect Electronic Export Information (EEI)
  • $14,194 mitigated down to $500 (the best possible relief)!
  • $14,194 mitigated to 10% of penalty to $1500, saving our client $12,694

CBP 28 / CBP 29 Responses / CBP Investigations and Rejections

• Our client received a CBP 28 for a U.S. Australia Free Trade Agreement verification.
  • After Diaz Trade Law filed a successful response proving the imported goods were eligible for preferential duty-free treatment, CBP closed the 28 with a positive CBP 29 (Notice of Action).
• Our client received a CBP 28 Request for Information from U.S. Customs to verify GSP eligibility.
  • After Diaz Trade Law submitted a substantive response proving the GSP claim was valid, CBP issued a CBP 29 determining that the merchandise qualifies for GSP and no duties are owed to CBP!
• Our client received a Request for Information (CBP 28) from CBP.
  • Diaz Trade Law filed a 28 response which included a Prior Disclosure. The 28 was closed out, and the disclosure was accepted by CBP resulting in no 1592 penalties being issued to our client.
• CBP physically inspected our client’s cargo at the time of entry and identified that the commercial invoice and packing slip submitted to CBP did not include one model number included in the cargo. Diaz Trade Law immediately negotiated with CBP to accept an updated invoice and packing list. CBP accepted and released the complete cargo with no further enforcement action taken, saving our client costly demerge fees and other expenses.
• CBP rejected and refused an importation of tires because CBP alleged the importer did not have a right to make entry. After three uphill battles with CBP and DTL’s strategic recommendation to change the import transaction model, the importer was successfully able to act as IOR and its merchandise was admitted into the US.

USTR/China Tariffs

• Diaz Trade Law assisted over 100 importers in filing complaints with the Court of International Trade challenging Section 301 tariffs imposed for imported goods under for List 3 and List 4a, requesting full refunds.
• Diaz Trade Law filed numerous exclusions for goods subject to the Section 301 List 3 and List 4. USTR agreed and granted our client’s exclusion!
• Numerous clients that were subject to 301 duties used Diaz Trade Law to actively monitor 301 exclusions to ensure they were notified when refunds were a possibility. Diaz Trade Law assisted with not only actively monitoring the relevant exclusions, but also interpreting the applicability, and fighting for refunds via the Protest or PSC process. CBP has accepted numerous Protests, and hundreds of thousands of dollars of refunds were sent to our clients!
• As a result of Diaz Trade Law’s closely monitoring Section 301 China tariff exclusions, Diaz Trade Law found an applicable exclusion for our client to use and filed two Protests with CBP requesting that CBP refund the China tariffs paid. Our client’s protests were approved by CBP, resulting in a refund of $64,678.00.

Export Compliance and Enforcement Mitigation Assistance

• Diaz Trade Law is actively assisting exporters:
  • Vetting proposed export transactions
  • Providing voluntary self-disclosures to Census and OFAC
  • Developing an effective export compliance plan
  • Developing export compliance training
  • Mitigation and corrective action
  • Presenting export report cards to clients based upon an analysis of ACE data
  • Analyze export trade data
  • With mitigation of export seizures and penalties
• Our client needed urgent assistance to ensure it understood the requirements to properly export hazardous materials. Diaz Trade Law successfully and expeditiously secured Competent Authority Approvals for the hazardous material from the U.S. DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration (PHMSA) as well as the Competent Authority of Turkey and Finland.

OFAC/FAA/HSI 

• Our client’s incoming wire payments of $842,918.92 from Venezuela were blocked by its U.S. bank for possible violations of U.S. sanctions laws.
  • After Diaz Trade Law filed a specific license application with the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), OFAC issued a specific license authorizing the legitimate funds to be unblocked and returned to our client.
• Our client was being investigated by FAA as a result of a hazardous materials incident.
  • As a result of Diaz Trade Law’s successful involvement, the FAA closed the matter with an informal action!
• Our client was being investigated by HSI for possible criminal liability.
  • After Diaz Trade Law’s intervention, HSI closed its investigation into our client.

 Protests

• Diaz Trade Law successfully assisted our client in filing two Protests with CBP. These approvals saved our client over $600,000!!
• After Diaz Trade Law’s successful Protest of CBP’s AD/CVD bills, our client’s protest was approved by CBP, saving our client over $200,000!!

Binding Rulings

• Diaz Trade Law successfully requested and received binding rulings for numerous clients confirming:
  • the correct country of origin for its prospective imported merchandise.
  • the correct harmonized tariff schedule (HTSUS) for its imported merchandise.
  • both the origin of their merchandise and appropriate CBP country of origin marking
  • the applicability of a free trade agreement.

Assisted Numerous Importers in Filing Prior Disclosures and Voluntary Self-Disclosures Accepted by CBP 

• Diaz Trade Law successfully submitted a perfected prior disclosure for underlying classification, valuation, quantity, and 301/China tariff errors. While reviewing ACE data, we identified offsets for the duties owed to CBP. Ultimately, CBP agreed with our assessment and accepted our prior disclosure and tender, resulting in a refund of over $25,000 to our client and ensuring no future penalties would be assessed for our client’s past importing errors.
• After discovering Electronic Export Information (EEI) filing errors made by one of our clients, Diaz Trade Law assisted our client in proactively filing a Voluntary Self-Disclosure (VSD) with the U.S. Census Bureau and assisting our client in fixing all past errors. The VSD filing was accepted and resulted in the U.S. Census Bureau closing out the matter without penalties being assessed.
• On behalf of a client, Diaz Trade Law filed a voluntary disclosure with the Office of Foreign Assets Control (OFAC), disclosing potential sanctions violations.
  • Diaz Trade Law worked proactively with OFAC and received this “No Action letter” with no penalties assessed to our client.
• Diaz Trade Law successfully assisted our client in filing a Voluntary Self-Disclosure (VSD) with the U.S. Census Bureau for violations of the Foreign Trade Regulations.
  • Diaz Trade Law proactively worked with the Census Bureau and corrected past filing errors. The VSD was successfully closed out with no penalties assessed.
• Diaz Trade Law successfully assisted our client in filing a Prior Disclosure. CBP accepted the prior disclosure with no 1592 penalties being assessed!

Bonded Warehouse

• After Diaz Trade Law’s successful application, our client’s Bonded Warehouse Application was approved!
• After its bonded warehouse was activated by CBP, our client realized it wanted to change the total square footage. Diaz Trade Law successfully assisted our client alter its customs bonded warehouse space.

Successfully Assisted Numerous Importers in Various Seizure Cases 

• CBP seized our client’s vehicle after believing it could have been used to import illegal substances. After Diaz Trade Law’s successful petition proving our client’s innocence, CBP released the vehicle with no penalty assessed
• $20,868.81 of our client’s currency was seized by CBP. After Diaz Trade Law’s successful petition, $19,868.81 was returned to our client!
• $15,795 of our client’s currency was seized by CBP. After Diaz Trade Law’s successful petition, $14,795 was returned to our client!
• $12,157.95 worth of jewelry was seized by Customs after our client failed to declare it. After Diaz Trade Law’s successful Petition, CBP released the jewelry within 22 days.

Awards

• In 2021, Diaz Trade Law founder Jennifer Diaz was again Chambers ranked in International Trade: Customs – USA – Nationwide

Publications

Key publications written by Diaz Trade Law in 2021 were:

• Bloomberg Law, Introduction to U.S. Export Controls: Part 2, November, 2021.
• Bloomberg Law, Protecting Intellectual Property Rights in China, October 2021.
• Bloomberg Law, Incoterms 2020, May 2021.
• Bloomberg Law, Submitting Voluntary Self-Disclosures to Bureau of Industry & Security, May 2021.
• Bloomberg Law, Submitting a Voluntary Self-Disclosure to Census, April 2021.
• Bloomberg Law, Submitting a Voluntary Self-Disclosure to OFAC, April 2021.
• Bloomberg Law, U.S. Customs Targets Use of Forced Labor, January 2021.
• Customs and International Trade Bar Association, An Overview of China’s New Export Controls Regime,
• Customs and International Trade Bar Association, COVID-19’s Impact on 2020 Trade Flows,

Customized Training Programs & Webinars

Key compliance programs taught by Diaz Trade Law in 2021 were:

• Intellectual Property Rights and Customs – Amazon Brand Registry
• CTPAT Program: Is CTPAT a Right Fit
• Successfully Navigating the U.S. Customs Detention and Seizure Process
• How to Navigate FDA Enforcement Action: Detentions, Warning Letters, and Import Alerts
• Requests For Information (CBP Form 28) and Prior Disclosures
• How to Build and Maintain an Effective Import Compliance Plan
• How to Build and Maintain an Effective Export Compliance Plan
• Importing Food in Compliance With U.S. FDA and Surviving A FSVP Audit
• Importing Medical Devices in Compliance With U.S. FDA
• 6 Months In – Insights on Biden & Congress on Trade
• Is it a Cosmetic, a Drug, or Both? FDA Enforcement Actions
• ACE: Auditing Your Export History
• ACE: Auditing Your Import History
• Introduction to Export Controls
• Importing 101 – Introduction to U.S. Customs
• Anti-Circumvention / EAPA / Dumping Duties & the Spreadability of Cases (Coated Paper)
• Other Trade Remedies 101 – Every Administration has a Favorite!
• Basics on AD/CVD
• Cleaning for Covid-19 – Importing Cleaning Products: Who Regulates You?
• Forecasting the Next 4 Years of Biden on Trade

Diaz Trade Law values you and appreciates your trust in us to be your Customs and International Trade Law Expert! Contact us at info@diaztradelaw.com to schedule your consultation or customized training today.

Did you know in FY2020, U.S. Customs seized more than 26,000 shipments worth more than $1.3 BILLION due to alleged intellectual property rights (IPR) violations? Ensure you’re on the right side of CBP enforcement and register for Diaz Trade Law’s next webinar “Intellectual Property Rights (IPR) and Customs (Including an Update on the Amazon Registry) – Amazon Brand Registry“ taking place on December 15, 2021. This one-hour webinar will provide best practices and TOP tips on how one can protect their IPR using U.S. Customs and Border Protection (CBP) and effective methods to go after IPR infringers.

Register today to hear directly from DTL’s president, Jennifer Diaz, Associate Attorney, Denise Calle and Of Counsel and IPR Specialist, Augusto Perera, as they teach attendees about intellectual property rights and the best ways to protect them.

Why Should I Register for this Webinar?

In FY2019 and FY2020, U.S. Customs (CBP) seized more than 53,000 shipments worth more than $2.8 BILLION because of alleged IPR violations. The vast majority of goods seized have come from China and Hong Kong. During FY2020, CBP reported 18,757 active recordations – more than each of the previous two years.  Importers must be aware of how to import in compliance with IPR laws as well as how to protect their own intellectual property rights

In response to enforcement discussed above, Diaz Trade Law is hosting a NEI accredited webinar, “Intellectual Property Rights and Customs – Amazon Brand Registry” to train industry on top tips to avoid enforcement, and best practices to proactively protect their own brands.

In this webinar, you will learn the basics of intellectual property considerations for your business, how to use Amazon Brand Registry to build your brand, how protecting your brand is an ongoing commitment and the steps you need to take to ensure you do so proactively.

Importers, in-house legal counsel, owners, executives, marketing professionals, and others interested in intellectual property are encouraged to attend either live on December 15, 2021 at 12:00 PM, or on demand thereafter. Register HERE!

Register today to to hear directly from Senior Trade Advisor, Don Woods, DTL’s president, Jennifer Diaz, and Associate Attorney, Denise Calle as they discuss real life stories, current trends/risks associated with the import process, proactive ways to stay compliant, and the importance of training to avoid costly encounters with CBP.

Why Should I Register for this Webinar?

CBP is actively enforcing its laws and regulations against non-compliant importers, as seen by the 70,683 seizure letters issued to importers in FY2021.  Importers are required to develop, maintain, and follow a compliant import plan. Importers must be aware of CBP’s various enforcement mechanisms, and more importantly,  how to avoid  such actions. CBP’s most common enforcement activities include seizures, detentions, and criminal prosecution.

In response to the increase in enforcement discussed below, Diaz Trade Law is hosting a NEI accredited webinar, Building & Maintaining an Effective Import Compliance Plan to train industry on top compliance tips to avoid enforcement, and best practices to maintain and effective and compliant import plan.

Seizures in FY21:

• With Fy21 yet to finish, the CBP has already had more than 70,000 trade seizures
• With Fy21 yet to finish, CBP has already had $2.5 billion worth of IPR Seizures – More than it has seized in each of the past 5 years!

Other Trade Enforcement Activities:

• 1,942 Trade Penalties Issued
• 16,302 Total Trade Liquidated Damages
• $16 million collected in Trade-related penalties and liquidated damages

In this webinar, you will learn the common risks associated with the import process and how to build and maintain an effective Import Compliance Plan . Presenters will discuss… The objective of the webinar is to teach participants how to create an effective import plan that allows importers to avoid CBP altogether.

Importers, Customs Brokers, Regulatory Affairs Professionals, and others engaged in the importation of goods into the United States are encouraged to attend either live on October 6, 2021 at 12:00 PM, or on demand thereafter. Register Here

The Florida Customs Brokers & Forwarders Association (FCBF) encourages all custom brokers, patent, trademark and all international trade professional to join its Intellectual Property Rights (IPR) with U.S. Customs and Border Protection (CBP) and UL. This one-hour webinar will give custom brokers, importers, and all other international trade professionals the ability to learn and understand CBP’s IPR customs and enforcement. 

This webinar will be Friday, September 3, 2021 at 11:30 AM EST.  

Register Now! 

Importers, Manufacturers and Customs Brokers, and others interested in CBP and IPR matters, regardless of affiliation or membership, are invited and encouraged to attend. Learn what customs brokers and importers need to know about UL and the increased safety risk associated with counterfeit products. The webinar will cover: 

• Overview of CBP’s IPR enforcement regime
• Timeframes followed by CBP in suspected IPR violations
• Information CBP is authorized to share with the broker
• Examples of notices and most pertinent information therein
• CBP’s perspective on gray market shipments
• How brokers can be proactive to limit the time flagged shipments are detained
• Best contacts at CBP for any IPR-related inquiries
• Programs available to the trade community

Learn more about our speakers:

President and Founder of Diaz Trade Law, Jennifer (Jen) Diaz is a Chambers ranked, Board Certified International Attorney specializing in customs and international trade. For more than 15 years, Jen has provided legal advice and customized training on import and export compliance to industry, with a strong record of success in mitigating federal administrative enforcement actions. 

Jen has received many accolades from the legal community, including being recognized by “Super Lawyers” as a Top International Attorney, having an AV rating of “Superb,” and serving as President of the Organization of Women in International Trade (2018-2019). 

A frequent media commentator, Jen has authored book chapters, journal articles, and other articles for The Florida Bar, the American Bar Association, Bloomberg Law, and others. Jen is Editor of “Customs & International Trade Law,” a blog recognized by the U.S. Library of Congress as being an important part of the legal historical record. 

Alaina van Horn currently serves as the Chief of the Intellectual Property Rights Branch of U.S. Customs and Border Protection, Office of Trade, where she supervises a team of attorneys and paralegals specializing in border enforcement of intellectual property rights. Prior to this position she served a one year detail in the Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC) in the Executive Office of the President, as a Policy Advisor specializing in customs law. Prior to joining the IPEC she was a Senior Attorney-Advisor in the Intellectual Property Rights Branch of CBP’s Office of Trade for over a decade, where she provided legal support to all ports of entry on border enforcement of trademarks and copyrights, adjudicated administrative petition for relief from seizure, issued binding rulings and infringement determinations, and administered patent and trade secrets based exclusion orders issued by the U.S. International Trade Commission. Ms. van Horn has conducted numerous capacity building trainings on border enforcement of intellectual property rights to foreign governments, international organizations, and domestic audiences in both the public and private sectors.

Lisa Deere has over 20 years’ experience in Intellectual Property, Anti-Counterfeiting, and prosecution. In late 2017 Lisa joined the Global Security and Brand Protection team of UL LLC (Underwriters Laboratories) as a Brand Protection Manager overseeing the United States and Canada.

Prior to joining UL, Lisa was responsible for the enforcement program at Conair Corporation where she launched the Anti-Counterfeiting program, initially with just

the US market, and eventually expanded the program globally.

Lisa’s IP career began while working for a major US charity. During her tenure with the charity, she worked closely with in-house counsel to build an international trademark portfolio, aggressively protected the brand through online enforcement, and assisted in defending against misuse of the charity’s well-respected name.

Lisa is actively involved in several Anti-Counterfeiting organization, including the International Anticounterfeiting Coalition (IACC), the International Trademark Association (INTA), and the Canadian Anti-Counterfeiting Network (CACN). She has served two terms as a member of INTA’s Anti-Counterfeiting committee, numerous terms on the INTA Round Table Subcommittee, and is currently serving as Vice Chair of the CACN Steering Committee. Lisa is a frequent moderator and roundtable host, and often speaks on the topic of health & safety issues related to counterfeit electronics.

REGISTER TODAY!

Join us IN PERSON in Baltimore, MD, July 26-27, 2021. NCBFAA NEI and hotel staff will be complying with all state and venue COVID-19 protocols so you can feel safe attending the event! Virtual attendance is available, so you can gain knowledge from anywhere!

REGISTER TODAY!

All trade professionals, regardless of membership or affiliation, are invited to join to:

• Learn from industry subject matter experts on today’s pressing matters
• Get an opportunity to voice your questions to federal, state and industry experts about the latest issues affecting your business
• Acquire fresh ideas by networking with business colleagues while meeting new people

Diaz Trade Law is enthusiastic to announce that our President, Jennifer Diaz will be a featured speaker alongside Adrienne Braumiller on the topic “Update on CBP Enforcement Efforts: IPR, Section 301, 232, AD/CVD” taking place on July 27th from 9:00 am to 10:30 am EST.

As we all know, Intellectual Property Rights, AD/CVD, Section 301 and 232 are all things on CBP’s priority list for enforcement. What do you have in place to make sure you are complying with the regulations? What have you done to assure yourself that your imports are not affected by the rules, and if they are, how you are managing the additional complexity of these movements?

Learn More About Jen Diaz!

President and Founder of Diaz Trade Law, Jennifer (Jen) Diaz is a Chambers ranked, Board Certified International Attorney specializing in customs and international trade. For more than 15 years, Jen has provided legal advice and customized training on import and export compliance to industry, with a strong record of success in mitigating federal administrative enforcement actions.

Jen has received many accolades from the legal community, including being recognized by “Super Lawyers” as a Top International Attorney, having an AV rating of “Superb,” and serving as President of the Organization of Women in International Trade (2018-2019).

A frequent media commentator, Jen has authored book chapters, journal articles, and other articles for The Florida Bar, the American Bar Association, Bloomberg Law, and others. Jen is Editor of “Customs & International Trade Law,” a blog recognized by the U.S. Library of Congress as being an important part of the legal historical record.

REGISTER TODAY!

To date, CBP has collected $87.8 billion in China 301 tariffs. If you have paid Section 301 China tariffs on Lists 3 and 4 and you have joined the landmark lawsuit demanding full refunds on these tariffs paid, it is critical that you understand the extent of China tariffs that you have paid, and proactively look out for liquidations. Proactively and comprehensively auditing your ACE import data is the first step.

Whether you are new to importing or a seasoned professional, this one-hour webinar is a must attend. Register today to hear directly from our Diaz Trade Law President Jennifer (Jen) Diaz about audit risks and duty-saving opportunities. Jen is a Chambers ranked, Board Certified International Attorney specializing in customs and international trade.

This one-hour webinar describe the benefits of Automated Commercial Environment (“ACE”) import history audits and show audience how to analyze data. ACE is a U.S. Customs and Border Protection (“CBP”) system designed to facilitate legitimate trade while enhancing border security. ACE provides a single, centralized access point for the trade community to connect with CBP and its Partner Government Agencies (“PGAs”). It is the primary system through which the trade community reports imports and exports and the government determines admissibility. The presentation will discuss services offered by DTL including the import report card.

In This Webinar You Will Learn:

• How to setup An ACE account
• What is ACE and why is it important?
• WHAT you import
• WHERE you import
• How much you import
• Determine cost saving strategies
• Determine issues with your import processes based on the data

Who Should Attend:

• Importers
• Customs Brokers
• Regulatory Affairs Professionals
• In-House Legal Counsel
• Product Development Managers
• Others Interested in Importing

This webinar is eligible for continuing education credit from the NCBFAA Educational Institute. Space is limited, registration required! Access instructions will be provided after your registration is complete. Don’t just take our word for how awesome Diaz Trade Law webinars are. Click here to see what our past attendees had to say. Be sure to join us on May 19, 2021! To register, click here.