Over the past few years, my office has reviewed tens of document packages prepared by factories for the purpose of substantiating the origin of textiles and apparel that have been detained by US Customs.

From that experience, I have drawn the following lessons.

The Standard Is Not Perfection

Documents are prepared by humans, and humans are imperfect. I have never encountered a document package that didn't have at least a few holes.

Recognizing this, the standard articulated by US Customs is that a preponderance of the evidence needs to point in the other direction (against admitting the goods) before Customs may deny entry. However, it does not appear that this standard is adhered to by all ports of US Customs. In fact, a port may refuse to admit any goods from a factory about which it has formed a negative impression, no matter how compelling the documents are and notwithstanding the fact that the factory may not be on a published blacklist. This impression often arises because of a jump team visit of that factory in which a US Customs officer from the port participated. Once such an impression is formed, the factory should consider inviting US Customs back for a re-visit to erase the impression, and until such time should also consider not shipping any goods through the port in question.

Don't "airbrush" the holes in documents. Explain them. I have run into several situations where a factory has innocently corrected a mistake in the documents. For example, worker A may have worked on Monday but didn't turn in his time card until Tuesday, which explains why Monday isn't reflected on her time card. Explain the fact that workers are often tardy in turning in time cards. Use other records (payment records, daily production logs, etc.) to show that worker A did turn up on Monday and was paid for that day. Don't go back and clock in Monday on the time card.

If there are missing documents that US Customs is requesting, explain why the documents are missing (lost, no such document exists, etc.). Don't create such a document for the purpose of the submission. This may seem obvious but it bears repeating.

Don't count on US Customs overlooking the holes in documents. Some importers adopt a lie-low strategy, an approach with which I don't agree. While there is no need to mention and explain away every single inconsistency, particularly minor ones, it is better to "defuse" the major bombs than have them be discovered by US Customs. Perfect example. Sewing tickets don't add up. Their total is less than the shipped quantity. US Customs can certainly count sewing tickets. Better to explain (there is always an explanation!) the shortage than to hope that US Customs won't discover it.

The documents tell a story. Tell that story to US Customs. Provide US Customs with a simple narrative of the who, what, when and where for the detained goods. This is a chance to put the best foot forward and present the documents in their best light. It is a mistake to give US Customs a pile of documents without any road map.

Even The Best Documents Packages May Fail

There may not always be a rhyme or reason as to which document package will pass muster with US Customs. Goods have been released from detention with lousy document packages and excluded with good ones. Still, the odds should be improved if the steps outlined above are followed.

Finally, don't expect to receive much of an explanation if US Customs ultimately excludes the goods because it determines that the document package was insufficient to prove their origin. Most ports will say little or nothing as to why a package was rejected. This is maddening, frustrating and unfair but that's the way it is.

Roy Ian Delbyck
Law Office of Roy Ian Delbyck

Disclaimer: The above article is not intended as legal advice. Please consult your lawyer should you seek advice on any of the matters discussed in this article.
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