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Seizure and forfeiture of imported goods is a little-known corner of the customs enforcement campus and that is a good thing-importers should be able to move their goods across borders freely, subject of course to all of the formalities that attend such transactions. For the most part, importers get to do just that, and seizure and forfeiture are out of mind. Most importers never give a thought to this topic because such an event is so extraordinary and pertains only to importers on the fringe, right?
Still, something out of the ordinary could occur and in that eventuality the importer's goods-even those of lawabiding importers-are liable to be seized. It is a good idea for the importer to know how and why such a thing can happen.
Seizure
There are two types of seizures. In the first, the law itself provides for forfeiture, and the first step is the seizure of the impor ted good. If the seizure ripens to forfeiture, the title to the goods passes to the government. In the second type of seizure, which is quite exceptional, the government can seize the goods to secure payment of a civil penalty.1 This column discusses only the first type.
The violator is the property itself. Enforcement is an in rem proceeding against the property. This is the origin of so many court cases with "funny" names, such as U.S. v. 164 Pieces of Jewelry2 or One Lot Emerald Cut Stones and One Ring v. U.S.3
To initiate the seizure, Customs and Border Protection (CBP) must have probable cause to believe that there is a violation of the customs laws that specifically provides for seizure and forfeiture, or another law that CBP enforces. Not all violations of the customs laws will trigger seizure and forfeiture. An example of a customs law that provides for such an enforcement remedy is section 497 of the TariffAct of 1930,4 a passenger's failure to declare merchandise. Another example is the seizure and forfeiture of counterfeit goods.5
An example of a law that is enforceable by CBP by seizure and forfeiture at the border is the Department of Fish and Wildlife (DFW) program under the Endangered Species Act6 for articles that are subject to the Convention on International Trade...