Inconsistent Filing Penalties Can Leave U.S. Exporters Scratching Their Heads

(Lexology – Joan Koenig and Nicolas Guzman Drinker, Biddle & Reath LLP)

United States Customs and Border Protection (CBP) has begun enforcing the heightened civil penalties outlined in its January 2009 enforcement guidelines against parties who violate the export filing requirements of the Foreign Trade Regulations (FTR) of the Department of Commerce, Bureau of the Census (Census). As enforcement has ramped up, an apparent conflict has arisen between the final rule on the mandatory use of the Automated Export System (AES), published in June of 2008 by Census, and the Guidelines published in the Customs Bulletin for enforcement.

Specifically, CBP has begun imposing fines of up to $10,000 on shipments at the Southern Border when the required notification for those shipments is not given within the one-hour window required by the Census regulations, but the filing occurs same day. These heightened fines have been imposed on exporters because of a conflicting definition of “failure to file” between the Census regulations and the CBP Enforcement Guidelines. Read more here.