ENFORCEMENT

Office of the Intellectual Property Enforcement Coordinator
of the trade agreements that serve as pillars of global
economic stability. Ensuring the highest quality
administration of customs laws ensures the highest
quality of trade, which is in the interest of all nations and
market participants around the globe.
1. Promote Necessary Seizure Authority and Best
Practices Around the World.
Each nation should endeavor to maximize its effectiveness
at interdicting illicit goods. By adopting modern and
effective interdiction authorities, international customs
organizations will be able to conduct enforcement
operations consistent with international norms. The
United States and the WCO, for example, have long
advocated for development of model legislation and
best practices, but progress has been slow. 27 Two key
subject matter areas that present a material opportunity
for improvement are: (1) the implementation of ex officio
authority, and (2) the confirmation that the clearance of
goods includes those that are moving in transit.
Ex Officio Authority.
The ability of customs officers to act ex officio in
interdicting infringing goods is critical to our success in
curbing illicit trade. As recognized by the WCO:
“Customs’ powers to act ex officio are a key feature
of effective border enforcement regime(s). In the
vast majority of cases, customs officers are the only
ones to know when and which allegedly infringing
goods are transported. Therefore unless customs
are empowered and obliged to act on their own to
stop suspected shipments at the borders, the border
measures will remain ineffective.” 28
There are different definitions of ex officio, but in
the simplest terms, it means that customs officers have
the authority to suspend the release of goods absent
an application filed by the rights holder. There would
still exist the need for a process—civil, judicial, or
administrative—to reach a final determination, which
could lead to forfeiture and destruction. However, at
the critical first stage, customs officers are empowered
to be able to act on their own initiative, relying on
good training and skills, to stop infringing goods from
entering into the stream of commerce.
Put differently, without ex officio authority, a nation is
left powerless as it awaits the filing of an application by
the rights holder, surrendering all national interests and
control in curbing illicit trade by placing the decisional
authority (to seize or not to seize) into the hands of a
single rights holder. This arrangement does not, and
cannot, withstand scrutiny in the modern global era and
is inadequate for at least two reasons.
First, the rights holder may not have adequate
resources to initiate an action in each and every
implicated country, city, or port around the world.
Unfortunately, the absence of actual ex officio
authority in law (and applied in practice) is not limited
to a small subset of nations, but rather, appears to
be the norm for large segments of the world. Small
and medium enterprises, for example, generally do
not have the infrastructure in place to be responsive
to customs-based inquiries the world over, especially
within the allocated window of time (i.e., generally
3-5 days). Even with a large, multinational company,
the scope of global trade and container port
throughput is so vast, that few if any companies can
reasonably respond to all trade inquiries in a timely
manner. There are over 100 ports in Latin America
and the Caribbean alone, with the container port
throughput for the top 20 ports (FIG. 53) in this
region at approximately 48 million TEU (a standard
unit of measurement, with each TEU equivalent to a
container of 20 feet).
Secondly, as discussed in detail in Section I, above,
a practice to release goods absent a complaint from
rights holders effectively overlooks all the threats and
hazards that the illegal import represents if permitted
to enter the supply chain: consumer health and safety;
the integrity of supply chains; sustaining fair competition
and the rule of law; curbing the financing activities
of criminal syndicates; sustaining environmentally
responsible practices; and not facilitating the trade in
forced or child labor-derived goods.
A well-developed ex officio implementation system
involves CBP partnering with the private sector, other
Federal agencies, and foreign governments. It includes
gathering advance information for targeted screenings,
stopping illicit goods at the point of entry or exit,
and punishing those who violate law and regulations.
Effective execution of ex officio authority saves valuable
resources, takes significant pressure off the judicial
system, and preserves national economic and security
interests while providing due process to safeguard
SECTION 3
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