CUSTOMS PENALTIES AND CUSTOMS BROKERS: THE YEAR IN REVIEW UNDER 28 U.S.C. §§ 1581(g) AND 1582

摘要

In keeping with tradition, the U.S. Court of International Trade ("CIT") issued relatively few substantive decisions concerning two areas of its jurisdiction which would seemingly have a broader impact than they actually do in everyday practice: 28 U.S.C. § 1581(g) (concerning the CIT's ability to review decisions of the Secretary of Homeland Security (and formerly the Secretary of the Treasury) to revoke U.S. customs broker's licenses), and 28 U.S.C. § 1582 (concerning the CIT's review of cases brought by U.S. Customs and Border Protection ("CBP" or "Customs") to recover certain civil penalties, liquidated damages on a customs bond, or customs duties). The decisions issued in 2008 highlight once again the futility that defrocked customs brokers face when seeking to overturn administrative decisions resulting in the revocation of their licenses. These attempts are particularly difficult when the broker is a convicted felon. In these instances, the CIT tends to side with CBP in affirming in whole or in part the issuance of significant penalties for negligent or grossly negligent conduct - although CBP may now have a higher standard to meet based on the new interpretation of the broker negligence regulation imposed by the U.S. Court of Appeals for the Federal Circuit ("CAFC") in the appeal of the UPS decision discussed infra. In a troubling development, however, the CIT also seems to have imposed a new standard of negligence on importers that fail to follow the advice of counsel - even when a legitimate issue exists with respect to the soundness of that advice.