by Janet Labuda

After the 2009 special enforcement initiative, called Operation Mirage, CBP compiled statistical data proved that the undervaluation of imported goods from China had risen to the level of significant risk in some product categories. Supported by the Administration’s direction to level the trade playing field, addressing undervaluation will continue to be part of CBP’s comprehensive trade enforcement strategy.

While working for CBP, an in-house counsel remarked that you would know you are on the right enforcement track when case law supports your theory of risk.

An example of this observation recently surfaced. In a press release dated October 3, Immigration and Customs Enforcement reported that, as alleged in a False Claims Act complaint, a company called Notations, acting as a wholesaler, repeatedly ignored warning signs that its business partner, which imported garments from China, was engaged in a scheme to underpay customs duties on the imported garments it sold to Notations.  Pursuant to the settlement, Notations admitted and accepted responsibility for failing to act in response to indications of fraudulent conduct. The company agreed to pay $1 million in damages, and implement measures designed to prevent future fraud in its business and supply chain operations.

The importer of women’s apparel manufactured in China presented false and fraudulent invoices to CBP, showing prices that were discounted by 75 percent, or more, to avoid customs duties. The wholesaler, Notations, which was the importer’s biggest customer, admitted that it aided this scheme by repeatedly ignoring warning signs that the importer’s irregular business practices were highly suggestive of fraud.

Notations has also agreed to implement a written compliance policy that will include measures to educate its employees on identifying red flags for fraud in import transactions, to monitor the conduct of its business partners who act as importers, and to report all potentially fraudulent conduct to CBP.

To be noted in this example, the court was successful in pursuing a case against a company that was not the importer of record, and that is in a foreign location.
This should be a warning to all companies. It is recommended that your written compliance plan include steps to monitor the players in your supply chain.   If your suppliers are buying overseas, your procurement team needs to remember that caveat emptor can save them a world of trouble.