Border Measures and Importation Regulations

A. General Importation Procedures

As the supreme governing power of the land, states hold judicial, legislative, and executive jurisdiction over subjects within their territory and can also regulate and decide who and what may enter into their territory and set the conditions of their entrance.

Although the customs regulations of each country are different, they share similar features. Typically, the importers are required to produce required paperwork, give prior notice, and file and declare the content and value of the goods. Then, the customs officials will determine the amount of the duties owed and inspect the shipment when necessary. Taking the U.S.’s practices as an example, importers must complete the following steps to ensure their shipments arrive legally. First, before the arrival of the goods, importers are required to make arrangements with the Customs and Border Protection at the port of entry where the goods will arrive. Second, once the shipments have arrived, importers shall then declare the entry of goods;^[187] file an entry sum­mary, which includes the goods’ classification, country of origin, and value and demonstrates that the importer has the right to make entry; and file for release. Finally, after these steps are completed and the estimated duties are paid, the importers may acquire an entry document indicating that all required proce­dures and requirements have been fulfilled. The goods will then be released for entrance.

Customs and Border Protection (CBP) is given absolute discretion to deter­mine which shipments shall be subjected to inspection.

Cross-Border E-Commerce and SPS Measures 63 other exam methods, VACIS is less invasive and can be performed relatively quickly.

On the other hand, the tail gate exam is usually performed at the port. A CBP officer will break the seal of the container and inspect its contents. If suspicious substances are found, the inspection might further escalate to the highest degree of inspection: the intensive exam. The intensive exam is an exam performed by an anti-terrorism contraband enforcement exami­nation team (A-TCET). The A-TCET exam is used less frequently and is usually performed after the cargo fails to pass the VACIS or tail gate exam. When an intensive exam is required, the shipment will be moved to a cus­toms examination station (CES) and emptied for CBP officers to inspect its content.

Regardless of being subjected to the VACIS, tail gate, or A-TCET exams, all inspection costs and incurred fees shall be borne by the owner of the goods (the shipper). Although being inspected by the CBP may be costly and frustrat­ing to those exporting to the U.S., checks and inspections occur less frequently than expected. In general, only 3—5% of the cargo entering the U.S. is selected for examination. Although importers are not required to hire a customs broker to clear the goods, customs brokers are helpful and may prevent importers from making costly mistakes.

Aside from the standard customs clearance and inspection procedures, addi­tional compliance requirements may be added to particular commodities such as food, pharmaceutical products, firearms, and other goods subject to the regulation of other federal agencies. Working together with the CBP, other agencies help to flag and signal shipments that ought to be subjected to a higher degree of inspection. For the importation of agricultural and animal products, special import regulations and inspections apply to mitigate the risk associated with these particular types of shipments. Agricultural quarantine inspection (AQI) is mainly used to facilitate the safe trade of agricultural goods and ensure the protection of the U.S. from unwanted plants, pests, and diseases. The AQI programs are enforced collaboratively at the border and ports of entry by the plant protection and quarantine (PPQ) and the CBP officers.

Meanwhile, the importation of meat, animal products, by-products, and live animals are subject to Animal and Plant Health Inspection Service (APHIS) regulations and are enforced together by the CBP and the United States Department of Agriculture Food Safety and Inspection Service (FSIS) officers. Permits, sanitary certificates (for animal products), and phytosanitary certifi­cates (for plant products) are generally required for agricultural and food prod­uct shipments. APHIS officers also check local markets and stores regularly in search of illegally imported commodities.

When importers fail to fulfill the required procedure and requirements, the goods may be subjected to suspension of entry, confiscation, and return. In addition, importers may face civil penalties and criminal fines and may even be criminally prosecuted if the goods relate to restricted or prohibited items.

B. Importation and Clearance Procedures for Postal and Parcel

Shipments

Compared with the sophisticated clearance requirements and procedures that cargo shipments must comply with, the customs clearance requirements and procedures for postal/parcel shipments are relatively simple.^[190] Two reasons explain and justify such differential treatments.

The United Nations Universal Postal Union (UPU) also helps streamline the customs procedures for international mail and parcels. International agree­ments and regulations were adopted under the UPU to ensure that all members use standard declaration forms for their international shipments. Although the shipper is also required to provide information about the parcel’s contents, weight, and value and the recipient’s name and address, the requirement is sig­nificantly less burdensome than for cargo shipments. In addition, international mail shippers are not required to make pre-arrival notifications, and the ship­ments can be released before the duties are collected.

As transportation technology developed and new forms of shipping demand emerged, private express carriers such as FedEx and DHL also joined and became part of international transport. Although private express couriers are treated no differently from usual cargo and baggage, the decision to have separate cus­toms procedures for private express carriers emerged as shipments increased. In 1989, the U.S. CBP published a new set of regulations and guidelines address­ing private express carrier needs. Under the new regulation, express couriers are required to reimburse the U.S. Customs for enjoying expedited clearances. Nonetheless, private express couriers are still required to provide pre-arrival document filing and fulfill the obligations to declare the content and value of the shipment. Nowadays, express carriers such as FedEx or DHL usually use customs brokers to clear the goods. Currently, the import clearance procedures for postal shipments and carrier shipments are very different.^[191]

III.