Multinational Industrial Engineering Company To Pay $22 Million To Settle False Claims Act Allegations Relating to Evaded Customs Duties

Linde GmbH and its U.S. subsidiary Linde Engineering North America LLC (LENA) (together, “Linde”) have agreed to pay the United States more than $22.2 million to resolve allegations that Linde violated the False Claims Act by knowingly making false statements on customs declarations to avoid paying duties owed on the companies’ imports, the Justice Department announced today. 

“This settlement reflects our commitment to hold accountable those who evade duties owed on imported goods, including antidumping and countervailing duties that level the playing field for U.S. manufacturers,” said Acting Assistant Attorney General Jeffrey Bossert Clark for the Department of Justice’s Civil Division.  “The Department of Justice will zealously pursue those who seek an unfair advantage in U.S. markets by bringing underpriced goods into this country.”    

“Trade policy is a critical part of our nation’s economic stability and security,” said First Assistant U.S. Attorney for the Eastern District of Pennsylvania Jennifer Arbittier Williams.  “Anti-dumping and countervailing duties ensure that American manufacturers are protected from unfair trade practices, and valuation requirements help to ensure that importers do not have an incentive to use foreign engineers instead of hiring in the United States.”

“U.S. Customs and Border Protection is proud to work with the Department of Justice to enforce our trade laws. Collecting revenue on behalf of the American people is something we take very seriously,”  said Brenda Smith, Executive Assistant Commissioner, CBP Office of Trade.  “We are glad to have come to an equitable and productive solution.” 

Linde GmbH is a multinational corporation headquartered in Germany that, among other things, imports materials into the United States for use in the construction of natural gas and chemical manufacturing plants.  Houston-based LENA managed procurement and logistics for Linde, which imported more than $500 million in goods into the United States between 2011 and 2017.

To enter goods into the United States, an importer must declare, among other things, the country of origin of the goods, the value of the goods, whether the goods are covered by antidumping or countervailing duties, and the amount of duties owed.  U.S. Customs and Border Protection (CBP) relies on these representations to determine the correct amount of any duties owed.  It is the importer’s affirmative duty to use “reasonable care” to make sure that such information is accurate so that CBP can assess the proper duties.

The United States alleged that, between 2011 and 2017, Linde avoided duties owed to the United States, including in some instances antidumping and countervailing duties, by misrepresenting the nature, classification, and valuation of imported merchandise, as well as the applicability of free trade agreements.  

Prior to the United States’ disclosure to Linde of its investigation, Linde made a partial disclosure to CBP regarding its importing practices.  In the settlement, the United States acknowledged Linde’s cooperation.

The settlement with Linde resolves a lawsuit filed under the whistleblower provision of the False Claims Act, which permits private parties to file suit on behalf of the United States for false claims and share in a portion of the government’s recovery.  The civil lawsuit was filed in the Eastern District of Pennsylvania and is captioned United States ex rel. Johnson v. Linde AG, et al., No. 17-cv-1012.  As part of today’s resolution, Ms. Johnson will receive approximately $3.7 million.

The settlement was the result of a coordinated effort among the U.S. Attorney’s Office for the Eastern District of Pennsylvania and the Commercial Litigation Branch of the Justice Department’s Civil Division, with assistance from CBP’s Office of Chief Counsel and CBP’s Regulatory Audit and Agency Advisory Services.

The claims resolved by the settlement are allegations only, and there has been no determination of liability. 

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    What GAO Found U.S. Customs and Border Protection (CBP) has policies and procedures for its officers and agents to test substances that they suspect are illicit drugs—referred to as a presumptive field test. Field officials that GAO spoke with said these policies and procedures provide sufficient guidance for conducting presumptive field testing. The policies and procedures address various topics, such as approved and recommended types of test equipment, use of the equipment, training, and requirements for documenting illicit drug seizures. They also address laboratory confirmation of field test results (confirmatory testing), which U.S. Attorney's Offices require for federal prosecution. GAO found that CBP's Office of Field Operations and U.S. Border Patrol conducted at least 90,000 presumptive field tests associated with an arrest from fiscal year 2015 through 2020. The average time for CBP to complete confirmatory testing across its labs decreased from 100 days in calendar year 2015 to 53 days in calendar year 2020, as of September 2020. This occurred while the total number of requests for confirmatory testing increased from about 4,600 in calendar year 2015 to about 5,600 in calendar year 2020, as of September 2020. With regard to accuracy, CBP officials have taken initial steps to upgrade the software system used to document confirmatory test results. This should provide CBP with information on the extent to which presumptive field test results align with confirmatory test results. Average Time to Complete Confirmatory Testing and Number of Requests for Confirmatory Testing Processed Across all U.S. Customs and Border Protection (CBP) Laboratories, Calendar Year 2015 through September 24, 2020 CBP has taken a number of actions to help ensure timely and accurate field drug testing, including: Identifying, testing, and deploying test equipment. For example, CBP tested multiple types of chemical screening devices to determine their performance and capabilities to detect fentanyl at low purity levels. Enhancing presumptive and confirmatory field testing capabilities by building permanent onsite labs and deploying mobile labs in certain field locations. Providing round-the-clock access to chemists who help interpret presumptive field test results. Why GAO Did This Study Within the Department of Homeland Security, CBP reported seizing approximately 830,000 pounds of drugs in fiscal year 2020. When CBP officers and agents encounter suspected illicit drugs, they conduct a presumptive field test. A positive test result is one factor CBP uses to establish probable cause for an arrest or seizure. GAO was asked to review issues related to CBP's field drug testing. This report examines (1) CBP's policies and procedures for testing suspected illicit drugs in the field; (2) available data on CBP's field drug testing; and (3) CBP's efforts to help ensure timely and accurate test results. GAO analyzed CBP data on presumptive field testing and laboratory confirmation of results from fiscal year 2015 through 2020; reviewed related policies and procedures; and interviewed CBP officials in five states at land, air, and sea ports of entry, Border Patrol stations and checkpoints, and CBP labs. GAO selected these locations to include varying levels of drug seizures, among other factors. For more information, contact Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov.
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  • Workplace Safety and Health: Actions Needed to Improve Reporting of Summary Injury and Illness Data
    In U.S GAO News
    GAO's analysis of Occupational Safety and Health Administration (OSHA) data showed that the number of recordkeeping violations OSHA cited fluctuated over 15 years (see fig.). An April 2012 federal court decision (that effectively limited the time period for citing these violations) and a January 2015 expansion of OSHA's rule for reporting severe injuries and illnesses coincided with, and were cited by, OSHA staff as key factors explaining these fluctuations. Number Recordkeeping Violations OSHA Cited by Fiscal Year Employers did not report any summary injury and illness data on more than one-half of their establishments that GAO estimated met the reporting requirements (see table). Estimated Compliance with Summary Injury and Illness Reporting Requirement Calendar year Estimated establishments that met summary injury and illness reporting requirements Establishments whose employers submitted summary injury and illness data     Number Percent 2016 451,000 159,000 35% 2017 454,000 189,000 42% 2018 459,000 212,000 46% Source: GAO analysis of U.S. Census Bureau County Business Patterns data and Occupational Safety and Health Administration (OSHA) summary (300A) injury and illness data. Establishments in all 50 states and the District of Columbia reported these data. Data rounded to the nearest thousand. | GAO-21-122 OSHA has limited procedures for encouraging compliance with this reporting requirement and for penalizing non-compliance. For example, OSHA officials told GAO that they identified nearly 220,000 employers in 2019 who may not have reported their data and mailed reminder postcards to about 27,000 of them. OSHA also cited 255 employers for failure to report their data from mid-December 2017 through September 2019 after OSHA conducted on-site inspections. OSHA uses the summary injury and illness data to target high-risk establishments for certain comprehensive inspections. Because OSHA has not evaluated its procedures, it does not know the extent to which its efforts may be improving injury and illness reporting or what other efforts it should undertake. Absent more complete information, OSHA is at risk for not achieving its objective of targeting inspections to establishments with the highest injury and illness rates. In 2018, about 3.5 million workers suffered job-related injuries, and illnesses and 5,250 died on the job, according to Bureau of Labor Statistics data. Employers are required to record work-related injuries and illnesses, promptly report severe injury and illness incidents to OSHA, and certain employers are required to report summary injury and illness data electronically on an annual basis. GAO was asked to review how OSHA addresses recordkeeping violations, and implements its rule for reporting summary data. This report examines: (1) how and why recordkeeping violations changed from fiscal years 2005 through 2019 and (2) the extent to which employers report summary injury and illness data and OSHA has taken steps to ensure compliance with this requirement. GAO analyzed 15 years of OSHA recordkeeping violation data and compared OSHA and Census data to estimate how many employers complied with summary reporting requirements. GAO also reviewed agency procedures and relevant federal laws and regulations and interviewed OSHA headquarters officials and staff at seven OSHA area offices, selected for geographic dispersion and varying amounts of recordkeeping violations. GAO recommends OSHA evaluate procedures for ensuring reporting of summary data and develop a plan to remediate deficiencies. OSHA generally concurred with our recommendation. For more information, contact Thomas Costa at (202) 512-4769 or costat@gao.gov.
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  • National Nuclear Security Administration: Information on the Fiscal Year 2021 Budget Request and Affordability of Nuclear Modernization Activities
    In U.S GAO News
    The Department of Energy's (DOE) National Nuclear Security Administration (NNSA) is in the midst of a long-term effort to modernize the U.S. nuclear weapon stockpile and its supporting production infrastructure. NNSA's modernization plans and budgets are communicated to Congress on an annual basis primarily through two key documents—the Stockpile Stewardship and Management Plan (SSMP) and DOE's budget justification—together referred to as NNSA's nuclear security budget materials. GAO reviewed four areas related to the affordability of NNSA's modernization activities as described in these budget materials: Funding for nuclear modernization activities. Congress funds NNSA's nuclear modernization activities through the Weapons Activities appropriation account, which falls under the National Defense budget function along with other NNSA, DOE, and Department of Defense (DOD) appropriations related to the common defense and security of the United States. Discretionary defense spending for fiscal year 2021 may not exceed a certain statutory limit, or else a sequestration—a cancellation of budgetary resources—would be triggered. Therefore, a proposed increase for a given program under the National Defense budget function may need to be offset by reductions in other defense programs to keep the defense budget within statutory spending limits. Comparison of modernization activities in budget materials for fiscal year 2021 and earlier. The proposed funding in DOE's fiscal year 2021 budget justification for NNSA's nuclear modernization activities for fiscal years 2021 through 2025 is about $81 billion, which is about $15 billion more (or about 23 percent greater) compared to NNSA's estimate for the same period in its fiscal year 2020 budget materials. The main factor contributing to this large increase in proposed funding for fiscal year 2021 was NNSA's reevaluation of the funding needed to meet existing requirements, rather than costs associated with new requirements outlined in the 2018 Nuclear Posture Review. Affordability discussion in the Fiscal Year 2020 SSMP. The Fiscal Year 2020 SSMP included a new section entitled, "Affordability Analysis." NNSA added this section in response to GAO's April 2017 recommendation that the agency include an assessment of its portfolio of modernization programs in future versions of the SSMP. The recommendation addressed a shortfall between NNSA's projected budget needs to meet program requirements and projections of the President's budget, a condition that could recur in the future. GAO found that NNSA's new section on affordability does not fully respond to its recommendation because the section does not provide information about how potential misalignment between NNSA's estimates of future modernization funding needs and projections of the President's modernization budgets may be addressed, or about the potential impacts of adjusting program schedules or cost or schedule overruns. Implications of potential New START expiration for modernization activities. New START is a treaty between the United States and Russia for the reduction and limitation of strategic offensive arms, and it will expire in February 2021 unless both parties agree to extend it for no more than 5 years. DOD is basing its plans on the assumption that New START will be extended, and it currently has no plans to change its force structure. NNSA similarly has not considered the implications of the potential expiration of New START on the assumptions underlying its overall program of record and future-years funding projections as described in the fiscal year 2021 budget justification. GAO was asked to review issues related to the affordability of NNSA's modernization activities as reflected in its nuclear security budget materials. DOE's fiscal year 2021 budget justification for NNSA includes a proposed $3.1 billion increase for nuclear modernization activities. The budget justification states that it supports the modernization efforts and the scientific tools necessary to execute the 2018 Nuclear Posture Review. Nuclear posture reviews are issued periodically to assess the global threat environment and establish policy on U.S. nuclear forces. For more information, contact Allison Bawden at (202) 512-3841 or bawdena@gao.gov.
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  • DHS Employee Morale: Some Improvements Made, but Additional Actions Needed to Strengthen Employee Engagement
    In U.S GAO News
    The Department of Homeland Security (DHS) and each of its major components face the same key drivers of employee engagement—as measured by the Office of Personnel Management's Federal Employee Viewpoint Survey (OPM FEVS)—as the rest of the federal government (see table). Higher scores on the OPM FEVS indicate that an agency has the conditions that lead to higher employee engagement, a component of morale. Key Drivers of Employee Engagement across the Federal Government, the Department of Homeland Security (DHS), and within Each DHS Component Agency DHS has implemented department-wide employee engagement initiatives, including efforts to support DHS employees and their families. Additionally, DHS's major operational components, such as U.S. Customs and Border Protection and the Transportation Security Administration, among others, have developed annual action plans to improve employee engagement. However, DHS has not issued written guidance on action planning and components do not consistently include key elements in their plans, such as outcome-based performance measures. Establishing required action plan elements through written guidance and monitoring the components to ensure they use measures to assess the results of their actions to adjust, reprioritize, and identify new actions to improve employee engagement would better position DHS to make additional gains in this area. In addition, approval from the DHS Office of the Chief Human Capital Officer (OCHCO) and component leadership for these plans would help ensure department-wide commitment to improving employee engagement. DHS has faced challenges with low employee morale and engagement—an employee's sense of purpose and commitment—since it began operations in 2003. DHS has made some progress in this area, but data from the 2019 OPM FEVS show that DHS continues to rank lowest among similarly-sized federal agencies. GAO has reported that increasing employee engagement can lead to improved agency performance, and it is critical that DHS do so given the importance of its missions. GAO was asked to review DHS employee morale. This report addresses (1) drivers of employee engagement at DHS and (2) the extent that DHS has initiatives to improve employee engagement and ensures effective engagement action planning. To answer these objectives, GAO used regression analyses of 2019 OPM FEVS data to identify the key drivers of engagement at DHS. GAO also reviewed component employee engagement action plans and met with officials from DHS and component human capital offices as well as unions and employee groups. GAO is making three recommendations. DHS OCHCO should, in its anticipated written guidance, establish the elements required in employee engagement action plans and the approval process for these plans. OCHCO should also monitor components' action planning to ensure they review and assess the results of their actions to improve employee engagement. DHS concurred with GAO's recommendations. For more information, contact Chris Currie at (404) 679-1875 or CurrieC@gao.gov.
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  • Private Water Utilities: Actions Needed to Enhance Ownership Data
    In U.S GAO News
    What GAO Found Available information on private for-profit drinking water utilities shows that 14 publicly traded companies served customers in 33 states in 2019. However, the Environmental Protection Agency's (EPA) primary source of publicly available information on U.S. drinking water utilities—the Safe Drinking Water Information System (SDWIS)—contains ownership information that is limited by inaccuracies. EPA collects information in SDWIS from states but does not include definitions for utility ownership types in its data entry guidance. In addition, EPA takes actions to verify some of the data, but does not verify or correct ownership data. EPA and others use SDWIS for purposes such as analyzing Safe Drinking Water Act violations by type of utility ownership. Such analysis can help EPA and states build utility capacity to provide safe drinking water. By defining ownership types, and verifying and correcting the data in SDWIS, EPA could help ensure the data are accurate and reliable for users of the data and the public. EPA provided over $500 million in Drinking Water State Revolving Fund (SRF) assistance to for-profit utilities for 226 projects to help ensure delivery of safe drinking water from January 2010 through June 2020. EPA's Drinking Water SRF program, created under the Safe Drinking Water Act, provides grants to states for low- or no-interest loans or grants to drinking water utilities for infrastructure projects. The amount provided to for-profit water utilities is small, about 2 percent of the $26.5 billion provided overall from January 2010 through June 2020. States That Provided Private For-Profit Utilities with Assistance from the Drinking Water State Revolving Fund, since January 2010 Why GAO Did This Study The roughly 50,000 drinking water utilities in the United States face steep costs—more than $470 billion over the next 20 years, according to EPA estimates—to repair and replace drinking water infrastructure. These costs are passed on to customers through water rates. States regulate the rates charged by privately owned water utilities. EPA has responsibilities to implement programs to further the health protection objectives of the Safe Drinking Water Act. GAO was asked to review private for-profit drinking water utilities and rates. This report examines, among other things, (1) information available from EPA and other sources about the number and characteristics of private for-profit water utilities in the United States, and (2) Drinking Water SRF assistance provided to private for-profit water utilities. GAO reviewed EPA SDWIS data, Drinking Water SRF data, and Global Water Intelligence data, as well as EPA's and others' documents. GAO also interviewed EPA and water utility stakeholders.
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  • Intellectual Property: CBP Has Taken Steps to Combat Counterfeit Goods in Small Packages but Could Streamline Enforcement
    In U.S GAO News
    The European Union (EU) and U.S. approaches to enforcing intellectual property rights (IPR) differ with respect to counterfeit goods in small packages, which are often sent through express carrier services or international mail. The EU uses a streamlined, application-based procedure to destroy suspected counterfeits in small packages. Through this procedure, rights holders request that member state customs authorities take action against such packages. The procedure allows customs authorities to bill rights holders for certain associated costs, and gives customs authorities discretion in sharing data with rights holders. In the U.S., U.S. Customs and Border Protection (CBP)—a component of the Department of Homeland Security (DHS)—is required to seize any goods it determines to be counterfeit, and typically destroys such goods, regardless of shipment size. CBP does not bill rights holders for the cost of enforcement, and is required to provide specific information to rights holders after seizure of goods. EU and U.S. customs officials reported common challenges in combating the flow of counterfeit goods in small packages. For example, EU and U.S. officials said the large volume of small packages makes it difficult for customs agencies to prioritize resources among competing needs such as drug enforcement and security. EU and U.S. officials also reported that a lack of adequate data on these packages is a challenge in taking enforcement action against them. Bags of Small Packages at Mail Facilities in Germany and France While CBP has taken steps to address these challenges, its primary enforcement processes are not tailored to combat counterfeit goods in small packages. According to CBP officials, from 2014 to 2018, CBP piloted a program to help address the volume of such packages by facilitating the abandonment of goods that it suspected—but had not determined—to be counterfeit. In 2019, CBP initiated a program to obtain additional data, and as of July 2020 had begun using these data to assess the risk that such packages contained counterfeit goods. However, CBP officials said that the seizure and forfeiture processes they are required to use for goods determined to be counterfeit are time and resource intensive. In April 2019, the White House required DHS to identify changes, including enhanced enforcement actions, to mitigate the trafficking of counterfeit goods. In January 2020, DHS proposed several actions that CBP could take, but CBP has not decided which to pursue to streamline its enforcement. Without taking steps to develop a streamlined enforcement approach, CBP will continue to face difficulty in addressing the influx of counterfeit goods in small packages. Counterfeit goods infringe on IPR, and can harm the U.S. economy and threaten consumer safety. CBP, the U.S. agency tasked with enforcement against counterfeits at the border, has reported that the annual number of small packages sent to the U.S. since fiscal year 2013 more than doubled, and small packages seized often contain counterfeit goods. The European Union Intellectual Property Office noted similar economic and consumer safety impacts in Europe, as well as increases in counterfeit goods in small packages. GAO was asked to review IPR enforcement practices in other advanced economies, and the extent to which CBP could apply those practices. This report examines: (1) how elements of the EU and U.S. approaches to combating counterfeit goods in small packages compare, (2) any enforcement challenges posed by these goods, and (3) the extent to which CBP has taken steps to address these challenges. GAO reviewed agency documents; interviewed CBP and customs officials in the EU; and met with private sector stakeholders, such as express carriers. GAO recommends that CBP take steps to develop a streamlined enforcement approach against counterfeit goods in small packages. CBP concurred with the recommendation. For more information, contact Kimberly Gianopoulos at (202) 512-8612 or gianopoulosk@gao.gov.
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  • Missile Defense: Fiscal Year 2020 Delivery and Testing Progressed, but Annual Goals Unmet
    In U.S GAO News
    What GAO Found In fiscal year 2020, the Missile Defense Agency (MDA) made progress toward achieving its delivery and testing goals for some of the individual systems—known as elements—that combine and integrate to create the Missile Defense System (also known as the Ballistic Missile Defense System). However, MDA did not complete its overall planned deliveries or annual testing. The figure below shows MDA's progress delivering assets and conducting flight tests against its fiscal year 2020 plans. Percentage of Missile Defense Agency Planned Deliveries and Flight Tests Completed for Fiscal Year 2020 Deliveries— In fiscal year 2020, MDA delivered many assets it had planned. Specifically, MDA was able to deliver 82 missile interceptors for 3 elements. However, MDA was not able to deliver all planned interceptors, including one originally planned for 2018 for the Ground-based Midcourse Defense program, as the program experienced delays related to qualifying parts from a new supplier. Flight testing— MDA conducted two planned flight tests, but neither was successful. The issues were due to problems with non-MDA assets, but the agency was able to collect important data. In addition, COVID-19 restrictions also affected the planned schedule. However, the delays continue a trend of MDA's inability to conduct planned annual flight testing, resulting in assets and capabilities that are subsequently delayed or delivered with less data than planned. Ground testing— In fiscal year 2020, MDA continued to implement a new ground testing approach that the agency began in fiscal year 2019. In addition, MDA successfully completed three planned ground tests demonstrating defense capabilities for the U.S., U.S. forces and regional allies. However, MDA delayed two other ground tests to future fiscal years and expects disruptions in fiscal year 2021, in part due to ongoing COVID-19 disruptions. Cyber— Despite failing to meet annual operational cybersecurity assessments since 2017, MDA canceled its planned fiscal year 2020 operational assessments, instead taking steps to implement a new approach designed to improve cyber system requirements while streamlining cyber test planning. It is premature to assess whether this new approach will achieve its intended goals. Why GAO Did This Study For over half a century, the Department of Defense has funded efforts to defend the U.S. from ballistic missile attacks. This effort consists of diverse and highly complex land-, sea-, and space-based systems and assets located across the globe. From 2002 through 2019, MDA—the agency charged with developing, testing, integrating, and fielding this system of systems—received about $162.5 billion. The agency also requested about $45 billion from fiscal year 2020 through fiscal year 2024. In fiscal year 2020, MDA's mission broadened to include evolving threats beyond ballistic missiles such as defending against hypersonic missile attacks. With the inclusion of non-ballistic missile threats, the Ballistic Missile Defense System is in the process of transitioning to the Missile Defense System. Congress included a provision in statute that GAO annually assess and report on MDA's progress. This, our 18th annual review, addresses the progress MDA made in achieving fiscal year 2020 delivery and testing goals. GAO reviewed planned fiscal year 2020 baselines, along with program changes due to COVID-19 restrictions, and other program documentation and assessed them against responses to GAO detailed question sets and program and baseline reviews. GAO also interviewed officials from MDA and various Department of Defense Combatant Commands. We do not make any new recommendations in this report but continue to track the status of prior recommendations. For more information, contact John D. Sawyer at (202) 512-4841 or SawyerJ@gao.gov.
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