Resources for Customs Brokers and Forwarders
Customs Enforcement Against Brokers
The government maintains several legal mechanisms for enforcement against CHBs, including:
License revocation proceedings
Broker penalties ($30,000 liability per occurrence)
Negligence/fraud claims under Trek Leather (19 U.S.C. 1592)
Criminal concerning false statements, and etc.
In addition, various types of liability may exist to private parties, such as importers and exporters, or other members of the supply chain. If your company is the target of enforcement action, we strongly advise that you contact a member of the firm to discuss your matter.
News Related to Broker Liability
April 27, 2019: California Court of Appeal Decision affirms Customs Brokers’ Terms and Conditions.
February 9, 2019: BIS and Census raised civil penalty amounts for export control and trade statistics violations.
December 20, 2018: Jana Brands v. C.H. Robinson & Ryan: US District Court holds that despite the ICCTA, Customs brokers can be sued under state law causes of action - such as breach of contract.
December 5, 2018: CBP: H290002: CHBs can’t pay unlicensed sales people on a commission basis.
October 19, 2018: A Georgia state court decision holds that an IOR claims against a CHB are limited to contractual remedies limited by terms & conditions of the POA, thereby contravening an action for negligence. It’s unclear whether issues of fiduciary duty, or a breach of contract (including the warranty of good faith and fair dealing were ever at issue.
July 18, 2018: IPR liabitiy: In Nike, Inc. v. Eastern Ports Custom Brokers, Inc. et al, 2-11-cv-04390 (NJD 2018-07-19, Order) the broker was sued by Nike for two containers of counterfeit shoes under the strict liability (no showing of intent is necessary) provisions of the Lanham Act. While Nike had claimed over $3 million due to lost profits on the over 200,000 counterfeit shoes (and had alleged 8 prior shipments), the court disallowed those theories as speculative and because the 2 containers had been seized. Instead the court awarded $30,000 per infringed mark (8 Nike marks) for a total of $240,000.
General News of Interest to Brokers:
August 13, 2019: CBP: Proposed Rule: Brokerage Vetting of Importers
June 8, 2019: DOC: Preliminary anti-circumvention decision on hardwood plywood from China (A-570-051/C-570-052). A certification requirement to be created for importers and exporters of plywood from China. Additional reading: Issues memo.
May 22, 2019: CSMS #19-000260: Section 301 Products Excluded from Duties - Liquidation Extension Request.
May 20, 2019: CSMS #19-000257: UPDATE: Decrease in Duty on Imports of Steel Under Section 232 (Republic of Turkey) .
May 19, 2019: CSMS #19-000252: Termination of Section 232 Duty For Steel and Aluminum Products of Canada and MX
May 9 & 10, 2019: CBP: CSMS instructions for LIST 3 declarations given increase to 25%.
May 8, 2019: USTR: LIST 3 increase announcement.
May 6, 2019: POTUS: Failed trade negotiations. LIST 3 to increase to 25%. LIST 4 to be readied at 25%.
April 17, 2019: CBP: Announces Entry Type 86 for low-value section 321 shipment at the NCBFFA conference. POA requirements under a type 86 entry are presently uncertain.
April 8, 2019: Support the Customs Business Fairness Act: Introduced to eliminate CHB liability under the 90-day “clawback” bankruptcy rules.
March 22, 2019: CBP: CSMS #19-000155: Submitting Imports of Second Group of Products Excluded from Section 301 Duties.
March 12, 2019: ACE: Center Unique Identifier (Center ID) announced to identify an accounts’ assigned Center of Excellence and Expertise (Center).
February 8, 2019: CBP: CSMS #19-000052: Submitting Imports of Products Excluded from Section 301 Duties.
November 9, 2018: NY/NJ 19-00-NWK Pipeline: Validating POAs.
October 24, 2018: CBP: Response to the Senate Committee on Finance, re: CBP iniatives.
January 10, 2018: CBP Video: Unified Cargo Processing (UCP).
November 21, 2018: CBP: LBG Guidance on Annual User Fees for Permits (due January 25, 2019).
November 15, 2018: Am. Shipper: FMC declines to intervene in S. California PierPass Program.