Wednesday, August 16, 2006

The Customs News

I am just back from St. Johns. As it turns out, that is Newfoundland and Labrador, not the U.S. Virgin Islands. When I was first approached about being on a customs law panel for the CBA, I had hopes that it was the Caribbean Bar Association calling. Turns out, it was my friends in Canada.

Much to my dismay, I did not spend enough time in St. Johns. My seatmate on the Montreal to St. Johns leg (a relatively young lawyer in the Canadian Department of Justice) piqued my interest with suggestions for side trips and restaurants. Approaching the landing, I could see the rocky coast and many small islands jutting into the Atlantic. It reminded me of summers spent with my family in Maine and New Hampshire. The Canadian maritime provinces are surprisingly remote from the U.S. east coast. To put it into perspective, consider that St. Johns' time zone is two and a half hours ahead of Chicago.

When I landed, I discovered anunexpectedlyy rugged and rustic town with a collection of Irish pubs and eclectic restaurants. Picture Gloucester, Massachusettss with a heavy dose of Dublin. Taking advice from the Justice lawyer, I dropped my stuff at the Delta hotel and walked down to George Street where I went directly to Kelly's Pub for what she informed me would be the "world's best fish and chips." I'd say they were certainly in the top three. I only remember equally good fish and chips in London and near the Manly terminal for the Sydney Harbor ferry. I ate the fish alone at the bar with a local Quidi Vidi Honey Brown Ale (or two) while a singer performed passable Simon & Garfunkel and The Kinks with an acoustic guitar. All together, a perfectly good dinner on the road.

The conference was interesting. Basically, it was a quick overview of customs and trade issues including safeguard actions, Canadian export controls, and penalties. My job was to explain reasonable care, U.S. civil penalties, and prior disclosure. The contrast with the Canadian Administrative Monetary Penalty System (AMPS) is interesting. AMPS is based on a laundry list of specific contraventions. Commit any contravention, and the importer is liable for a corresponding monetary penalty which may be zero or up to CA$25,000. The penalty increases for subsequent offenses. It is essentially a strict liability system.

The U.S. has a wholly different approach based a general prohibition on entering merchandise by the use of a materially false statement or omission. Penalties depend on the level of culpability from two times the duties owed for simple negligence to the value of the merchandise for fraud. Importers in the U.S. who discover a violation can limit their exposure to penalties via a prior disclosure (which I discussed here).

Happily, I did not get any questions about the softwood lumber dispute. There was agreement among everyone in the room that importers should be able to rely on facially valid NAFTA certificates of origin without having an obligation to engage in independent verification of the origin of the merchandise. That translates into saying that Customs' case against Ford Motor Company is bogus. Which it is.

4 comments:

Anonymous said...

Did she peek your interest or pique your interest?

Larry F. said...

Changes made to correct atrocious spelling.

Anonymous said...

Larry: We'll have to wait a bit for official confirmation that Customs' case against Ford is bogus. Judge Battrani in the ED Michigan dismissed our Declaratory Judgment action this week. Sadly, it proved that Customs' strategy of throwing up as much mud as they can lay their hands on does have its effect. On the merits, she found that our action was legitimate, but declined to exercise her discretion under the DJ Act. So, it's now on the road to El Paso, hoping we can win on the road, like another Detroit team has been doing rather well. Paul V.

electronic signature pdf said...

I was not aware of some of facts that you mentioned above one is as you said the U.S. has a wholly different approach based a general prohibition on entering merchandise by the use of a materially false statement or omission. Penalties depend on the level of culpability from two times the duties owed for simple negligence to the value of the merchandise for fraud