Thursday, August 28, 2008

The Cool War on Qat

Here is an interesting story from Philadelphia, Customs and Border Protection has identified that city as a distribution hub for qat (A/K/A khat). Qat is a shrub from the Arabian Peninsula and East Africa the fresh leaves of which are chewed for their stimulant effect. While legal in Yemen and elsewhere, quat is a controlled substance here. The interesting thing about this story is the generally low level of prosecutorial effort put into qat after the goods are seized.

Apparently, the anti-qat forces (if there are any) have got to get better media people. They need a Reefer Madness-style movie extolling the evils of qat and a clever commercial. "This is Haile. This is Haile's brain on qat."

Wednesday, August 27, 2008

Followup: US v. Ressam

A commenter to this post asked what the Supreme Court decided. While I should be watching Bill Clinton make nice with the Obama camp, I'll work for you my loyal readers instead.

You may recall that the issue was whether simply possessing explosives while making a false declaration to Customs was sufficient to constitute the crime of carrying an explosive "during the commission of a felony." The false statement was the felony. The defendant's argument was essentially that the false statement had nothing to do with the explosives. The Ninth Circuit Court of Appeal agreed that the "during" element means that the explosive has to have something to do with the felony.

The Supreme Court, in an 8 to 1 decision, disagreed with the Court of Appeals. Here is the decision. Mr. Justice Breyer dissented. He took the position that the Court's reading of the statute is overly broad and criminalizes behavior Congress did not intend to make criminal. His primary concern is that people have legal and legitimate reasons to carry explosives (which are defined as including a number on non-explosive chemical compounds). So, if a farmer carrying fertilizer happens to get the urge to rob a bank, he or she should be charged with bank robbery and not the added offense of also carrying explosives during the felony. A more worrisome example is the trucker carrying a load of diesel from Canada who fails to declare to Customs and Border Protection the presents he bought while in Canada.

Given the outcome of the case, please take my advice and be very careful about what you are carrying whenever you commit a felony.

Bike Stuff

The season is rapidly coming to an end for me. It's mainly an issue of darkness and the fact that September and October will be full of travel. I figure I have a few more good weeks of riding to work, so I better take advantage of them.

In the meantime, I totally want to figure out how to take a month off and do the Grand Illinois Trail. It's 535 miles, so in theory I could do it comfortably in 10 days and probably in a week. I bet it is hilly out west. I'm not used to that.

To add insult to injury, the boat gets hauled out soon.

I hate this time of year.

Tuesday, August 26, 2008

Quick Items Tuesday

First Sale Alive for Now

In yesterday's Federal Register notice regarding the data reporting requirements for first sale valuation, Customs and Border Protection tossed in the following statement with little fanfare: "CBP is withdrawing the notice of proposed interpretation." In other words, the effort to eliminate first sale valuation is dead for now. Despite that, Congress has mandated data collection, so that will go on. It is kind of like a movie I remover seeing as a kid in which a hand is separated from a dead body and continues on its merry way. Without a proposal to change the interpretation of "sold for export," this data is the tale wagging a dead dog. But, unless Congress acts, it seems CBP is stuck with the requirement. Frankly, this doesn't seem like a very big burden for importers. Let me know if I am wrong.

Farm Bill Lacey Act Amendment

I guess I should mention the other big data collection program. Under Farm Bill Amendments to the Lacey Act, plant and plant product imports will need to be reported and certified as not having been taken in violation of local law or regulation. This is going to be a hassle because it covers everything from paper products, to furniture, to wooden toys. December 15 is set as the start date for that program, which will require paper filings.

The New Zealand Problem??

I majored in Political Science at the University of Illinois at Urbana-Champaign (except that back then it was Champaign-Urbana). While there, I participated in an arms control and disarmament program because, at the time, it seemed vitally important. I did my honors paper on the then-tumultuous relationship between the U.S. and New Zealand. This was 1985 or so. NZ had kicked U.S. navy ships out of the country because the U.S. refused to disclose whether the ships were carrying nuclear weapons. This lead to a meltdown in the Australia-New Zealand-U.S. (ANZUS) Pact, which was a sort of NATO of the South Pacific.

Well, I don't want to get people too riled up, but it seem like New Zealand is trying to sneak into the U.S. commercial market via the backdoor of NAFTA, namely Mexico. Read this article. Tricky Kiwis. First they take the America's Cup, now they invade NAFTA.

Actually, this is perfectly legit. If a NZ company wants to do production in Mexico, that is good for Mexico and presumably consistent with the NAFTA's goal of encouraging investment in the region. I have no problem with that. I just think it is funny that all the NAFTA safeguards intended to prevent "export platforming" seemed to have been targeted at Asia. Instead, we might be seeing an invasion of Kiwi products. Other than Dame Kiri Te Kanawa, I'm not sure what that would be.

Wednesday, August 20, 2008

Admin Law Shout Out

My open thread on rules of origin got a nice hat tip from the Administrative Law Prof Blog, which I have added to my blog roll. I'll also tip you to Professor Nathan Cortez's blog for his Administrative Law class, which is just getting rolling. Maybe we can all follow along a pick up a few tidbits here and there.

For anyone in the Chicago area, my NAFTA and Free Trade Agreements class at the John Marshall Law School Center for International Law gets started September 12. It runs in a four-day seminar format. I run a very practical course that is long on compliance and short on theory. There's still room.

Friday, August 15, 2008

Open Thread: Uniform Rules of Origin

I know my open thread experiments never work. Nevertheless, I will soldier on once again.

I have been having a lot of discussions about Customs and Border Protection's proposal to implement tariff-shift based rules of origin and do away with the old substantial transformation approach. For background, see here.

Here is what I want to know? Do we think this is legal?

One argument goes that CBP has the authority to implement the marking requirements through regulations and that agencies have the ability to change their policies by changing regulations. They just need to go through the proper notice and comment steps and explain the change rationally. So this is routine and permissible.

Another argument goes that agencies can only regulate when given express authority or to fill gaps in ambiguous statutes. When the Supreme Court decided that an origin determination is made by finding the last substantial transformation, it removed the ambiguity in the statute leaving the agency without authority to regulate a different test. A contrary approach leads to the absurd result that Court decisions are meaningless except with respect to the individual case that was decided because agencies can regulate their way around any judicial interpretation.

Are there more arguments out there?

I know that there are lots of customs lawyers reading this. I also know people are often hesitant to talk about live issues that might end up in court. But come on, throw the trade community a bone. What do you think?

By the way, note that I affirmatively did not say what I think. Unlike the rest of you, I am not anonymous.

Weirdest Customs News of the Weird Ever

In the past, customs news of the weird has usually focused on people smuggling live animals or dead humans into the country. This story has none of that exotica, but it is truly weird.

It seems that a customs broker on the southern border has been going to banks--including the Federal Reserve Bank--and directly to the Bureau of Engraving with large amounts of dirty old cash to exchange for crisp new bills. By "large amounts," I mean around $20 million in $100 bills from the 1970s and 1980s. The story as to the origin of the money seems to be somewhat fluid and a criminal investigation is underway. We do know the money came from Mexico. Oops, that's a problem. While finding money and exchanging old for new currency is perfectly legal, importing it from Mexico without the proper disclosures is illegal. It appears this customs broker overlooked that legal requirement.

It's a crazy story. I know I have readers in the brokerage community in Texas. Does anyone have any inside info on what is going on with this case?

Thursday, August 14, 2008

Survey Says . . .

Here are some of the results of my web poll about this blog.

  • 56% of you visit one to five times per month and 21% visit one to seven times per week.

  • 65% of you get here via a saved shortcut, favorite, or similar method.

  • 93% of you are customs compliance professionals. The remainder must be my family and the occasional visitor wondering about bike panniers.

  • 53% of respondents are in industry, 18% in law firms, and 15% in in-house law departments.

  • The top three areas of interest are customs law, trade law, and related litigation.

  • While a large majority find my off-topic posts to be "not a problem," a vocal minority find them annoying and a slightly larger minority apparently find them witty and charming.

  • A number of you had helpful suggestions for the Blog Roll on other useful web sites. I'll get around to adding some links. I'll admit to some hesitation to post links to direct competitors, especially without a reciprocal link. I need to work that out in my own head.

  • Happily, 62% of respondents have visited my firm's site.

  • Non-US survey responders were from Canada and the UK but about 95% were from the U.S. I find this a bit interesting because my traffic reports show visitors from all over the world. I have even had a visitor from a research station in Antarctica. This map shows the locations of my last 100 visitors:

As to things I can do better, here are a smattering of responses:

A picture of the sail boat (Thanks, Dad. See below)

Publish more frequently (I'll try)

Better follow up to earlier posts (Point taken)

More on CIT and CAFC decisions (Really?)

My work :) (That can be arranged, for an appropriate fee.)

Refueling dock at Reefpoint, Racine, Wisconsin

Where I sleep. It's not unlike of coffin.

Racing a storm into DuSable Harbor, Chicago.

Monday, August 11, 2008

Laptop Searches Update

On July 31, the Securing Our Borders and Our Data Act was introduced by Representative Eliot Engel with Representative Ron Paul on as a co-sponsor. Here is a press release on the bill, which is intended to limit Customs & Border Protection's authority to search digital data without reasonable suspicion that the data holds evidence of a crime.

Here is the full text of HR 6702.

This is an interesting issue that seems likely to dog CBP for a while. I think it is safe to say that your average American does not understand the current law on border searches. I also suspect that many would be outraged if they did. That said, the Supreme Court has been clear in stating that border searches are reasonable because they are border searches. Unless Congress acts, people better be prepared to turn over their data when they arrive in the U.S. As the wise man once said, if you would not want the information on the front page of the Chicago Tribune, you should not carry it across the border.

All that said, I do wonder about what is actually happening at the border. Inspectors have a lot of discretion in deciding who to search and to what degree. I have no reason to think that CBP is abusing that discretion. But the media seems to have latched on to this pretty tightly. It seems like CBP needs to get out ahead of this on the PR front if it wants to avoid a nasty drubbing in the court of public opinion.

Thursday, August 07, 2008

Back at My Desk

Well, I should say "a" desk.

Due to the dearth of comments, I gather nothing of particular importance happened while I was gone. I guess that is good.

I started my week away with the move of our office to new space within the building. The sad part of that story is that even when you move within a building, you still need to pack. The new space is a much better configuration than what we had and represents a more modern view of office design. By that, I mean it more closely represents my view of office design. As a result, I have a very nice office with a view of the Chicago River. I also have about 30% less floor space than I had. At the same time, I claimed a desk that is about 50% larger than my previous desk. Can you do that math? Apparently, I could not.

I am now sitting with my back to the long wall and my right side to the window. This is not an ideal arrangement. I am looking at a wall and would rather look toward the door. The desk takes up an inordinate amount of room. So much so that the movers, who were a bit slap happy at close to midnight, laughed as they tried to situate it for me. Now I need a new desk and, frankly, have limited interested in going shopping. I would like one or more of those Walter E. Smithe brothers (that may be a Chicago-centric reference) to miraculously show up with a desk for me. I'll be in one of their clever commercials if they do, I promise.

On my vacation jaunt I learned a couple things:
  • Southern Indiana is riddled with caves.
  • Daniel Boone had a younger brother named Squire who explored some of those caves.
  • The Cincinnati area has an inexplicable obsession with a pork and oatmeal sausage called goetta. I even attended Goettafest 2008, although I declined to partake.
  • When it is hot, a water park beats an amusement park.
  • Never let someone who has no kids tell you whether a roller coaster is suitable for an 7-year old.
  • Graeter's makes an outstanding black raspberry chip.
  • XM radio rocks.