Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Even CBP Must Follow The Rules

The September 16, 2010, decision in U.S. v Pressman-Gutman, et al. (CIT 9-16-10) Slip Op. 10-105, has triggered rounds of applause among traders. This case once again confirmed the regulations mean what they say. In summary, CBP requested samples from Pressman-Gutman that triggered a conditional release period. 19 C.F.R. 113.62(d) states, if CBP wishes goods redelivered, it must do so within thirty (30) days of when the conditional release period ends. Instead, CBP took several months before demanding redelivery. When the importer demurred, CBP eventually sued both the importer and its surety. The jubilation came when the judge took CBP to task, calling its theory of the case "bankrupt," and its position contrary to 20 years of rulings and having no "colorable claim." The court also stated the action should never have been brought.

To say that CBP was taken to the woodshed on this case is to put it mildly. Instead of celebrating the fact CBP got put in its place for flouting the law, what we really should do is acknowledge that, because so much of the decision-making by CBP is disbursed to the ports, the fact this case got filed is not all that surprising. CBP officers seem free to make whatever decisions they want with little effort to ensure compliance with the same rules and regulations that govern the trade. How often is CBP able to succeed with questionable or improper actions simply because the amount involved is small or the company cannot afford to pursue the litigation process? Pressman is a reminder that CBP needs to do two things. First, its people need much more training and the oversight of qualified supervisors and attorneys so that bad decisions like the one leading to this case are minimized. Second, CBP needs to do more sensitivity training of its staff. Just because an individual CBP employee does not like the outcome of a matter does not mean he or she can invent a law or regulation to suit his/her desires and rely on "I’m from the government" to compel enforcement by intimidation. What will it take for CBP to finally penalize its staff when these sorts of actions occur?

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