Monday, December 29, 2008

.PR

Greetings from the customs territory of the United States, but just barely.

I'm annoyed at Google today because when I tried to search for something, it sent me to www.google.com.pr en espanol.  I understand that this is a feature not a bug and that it makes life easier for the locals.  But how come I can't get to my plain old Google?  When I manually enter the Yankee-centric address, I am redirected to the .pr version.  Happily, there is "Google.com.pr ofrecido en: English."

Note that the same thing happens with Blogger.  Google should set a cookie or profile tag with my preferred language and search page.

Here's a question to which I should know the answer.  Why are they letting me in duty free stores here?  As I recall (and I admit I have not looked at this for a while), the reason the proprietor of a duty-free store is exempted from duty liability is that the goods are being sold for export.  Last I checked, I was still in the customs territory?  What gives?  In this case, is it just about Commonwealth taxes?  This is from an official-looking web site:

Duty Free 
Puerto Rico is not a duty free island, although there are duty free shops at the airport. There is sales tax ONLY on jewelry. If you are returning to the U.S., because you’re still in the U.S., there is no duty to pay when you return home.

So duty is paid on imports to Puerto Rico (I knew that).  There are no duties due on goods shipped from the island to the mainland U.S. (I knew that too).

My guess is that the duty-free stores are just accouonting for export sales and non-export sales.  But, I may be unaware of some detail and I am on vacation so I am not going to look at the regulation.


Monday, December 22, 2008

One More Quick Item

An increase in the duty on cars imported into Russia has caused violent protests. Here is the New York Time story. Forget about all the academic arguments over whether high tariffs are good or bad for the local economy. I'm interested in that bust can't possibly sort it out in a blog post. I'm not, after all, a Nobel laureate with a New York Times column. No, I am just a customs lawyers.

What I do think is interesting is the comparison to the U.S. market. What do you think would have to happen to get Americans to take to the streets to protest an increase in customs duties? The U.S. has basically banned some forms of caviar, made so-called "conflict diamonds" contraband, and maintains high rates of duty on fancy foreign shoes. So, I surmise it is not luxury items that would cause a riot.

I posit that an increase in the effective rate of duty on Red Stripe, Corona, and Pilsner Urquell would cause an uproar among the pretentious young intellectual crowd. Keep in mind, I write this while sitting in this T-shirt. I think that makes me an over-the-hill pretentious intellectual wannabe.

For me, if this stuff lost its NAFTA status, I'd consider moving to Mexico.

New Lacey Tools

I'm short on time and I am pretty sure just about everyone has checked out of their business mindset for the holidays. Nevertheless, I'll give you this bit of news: APHIS has posted to its web site some tools for Lacey Act compliance.

Lacey Act Declaration form.

Plant classification database.

And here, for good measure, is the APHIS Lacey Act home page.

Wednesday, December 17, 2008

You've Been Voted Off . . . By CBP

Just when I thought things were getting dull, Wayla Guy tipped me to this story.

First, just so CBS knows, my firm has an office in New York and we are happy to come by for a meeting. We'll bring sandwiches if you want.

The story is that upon wrapping the 17th season of its reality show Survivor, CBS shipped a container of goods back to the U.S. The show had filmed in Gabon, West Africa. Note surprisingly, the shipment contained lots of Africana including animal skulls and hides, ceremonial masks, ostrich feathers, shells and various bones.

OK, first things first, people familiar with Fish & Wildlife regulations should have that tingling of Spidey-sense. What kind of shells and bones? Do we have a Convention on the International Traffic in Endangered Species problem? What were the masks made of? Could there be elements from protected species used to decorate those masks?

As John McLaughlin would say, Issue Two: The merchandise was apparently infested with termites and other vermin including some linked to Ebola virus. What? Skip APHIS and call the CDC right away. Ebola virus is supposedly the most deadly virus on earth. According to The Hot Zone by Richard Preston, which I highly recommend, people infected with Ebola quickly fall apart inside and bleed to death from every orifice of their body. Now, I am not saying Ebola was in the container, the story just says that there were pests associated with Ebola in the container. That's good enough for me to be wary. I hereby pass on any invitation to spend New Years Eve at Jeff Probst's house.

Issue Three: The manifest data for the shipment identified the goods as American Goods Returned. At first, I was floored by this. How could ceremonial masks and ostrich feathers be US goods returned? Then I started thinking about the importer. After all, this is CBS--a television production company. If there is one thing they are likely to have, it is a giant warehouse of props. They probably have stuff from Tarzan movies and old episodes of Daktari to recycle as Tribal Council chotzkes. So maybe they are are US origin. I certainly don't know. If it was actually US goods returning, I am sure that CBS has the necessary documents to support the claims.



Issue Four: The CBP spokesperson says in the article that ALL packages containing US goods are inspected to ensure that foreign merchandise is not commingled. Really? All such packages? Clearly there are more inspectors out there than I had known.

Last thing: Was that Erin Moran in Daktari the same as Joanie Cunningham in Happy Days and Joanie Loves Chachi? Who knew?

I will now extinguish my torch and leave Tribal Council.

Tuesday, December 16, 2008

Are We In the Holiday Doldrums?

Seems awfully quiet out there.

Washington is in pre-inauguration limbo and a lot of businesses are quiet either due to the economy, the cyclical nature of their business, vacations, or just the weather. It seems to me that there hasn't been much about which to write lately. (Perhaps I should post on whether it is worth sounding pompous to avoid ending a phrase with a preposition.)

So, I will pass on this item about festive articles. After years of litigation, Customs and Border Protection has issued new guidance on how to classify festive articles in the wake of Michael Simon Design, Inc. v. U.S. This guidance does not go to bakers' wares at issue in the ongoing Wilton case, nor does it cover costumes, which were previously resolved.

The upshot is that for entries post February 3, 2007 utilitarian articles like tableware, apparel, and bed linens are excluded from Chapter 95 by virtue of new Note 1(v). Following Michael Simon Design, the exclusionary note does not apply to entries prior to that date (although CBP argued that it should).

As a result, liquidation instructions appear to be as follows:

Entries prior to February 3, 2007

Utilitarian article with festive designs may be classified in 9505 as long as the design is closely associated with a festive occasion and they are unlikely to be displayed at other times.

Entries after February 3, 2007

Utilitarian articles with festive designs are to be classified according to constituent material and as tableware, linen, etc. pursuant to Chapter 95, Note 1(v). But (and this is a big but), if the design of the product is so closely associated with a festive occasion that displaying it at other times of the year would be unlikely (or "aberrant"), CBP is going to withhold liquidation pending the creation of a special Chapter 98 classification to guarantee rate-neutrality. What that is all about is the fact that if goods were previously properly classified as festive articles, the rate of duty should not increase when the classification changes as a result of the amended Chapter Notes. This has to do with the fact that the law requires amendments to be as revenue neutral as possible.

Keep in mind that your purely decorative (i.e., non-utilitarian) and festive merchandise stays in Chapter 9505.

Now . . . as the holiday season rapidly approaches and as I watch the snow pile up outside my window, I have the opportunity to expound on my personal, sure-fire test for whether something is a festive article. I call it the Rabbinical Test. Take any arguably festive article associated with Christmas or Easter and show it to a rabbi. If the rabbi says, "I would never have that in my house," it is a festive article. For example, take a serving platter in the shape of a snowman--top hat, corn cob pipe and all. There is nothing overtly religious about this item. Yet, everyone knows it is a Christmas item. If you tried to give it to a rabbi, the response (whether spoken or not) would be, "Oy, a chotzke I don't need. More mashugana chazerai from the goyim."

Take this pitcher. The only way it gets into my house is by accident. It's festive, and I'm not even a rabbi.

This works in reverse. If you show a Seder plate or Hanukkah sweater (if there is such a thing) to a priest and he says "I have no use for that," we know it is festive. Of course, you need to tailor the test for the festive occasion. I believe certain sects do not celebrate birthdays or Halloween, so they get those items for review. I think you see my logic.

Of course it will fall apart when Starbucks cleverly tries to get a Mormon to declare coffee a festive article.

Friday, December 12, 2008

New E-Mail & Twitter

For my side gig, I write technology columns for the Chicago Bar Association. I've been doing that for more than 10 years. The name of the column is "Riding Circuits." Lawyers will get the pun. One of my designated topics is online marketing. Lately, I've been reading a lot of over heated articles about the value of Twitter for lawyer business development. So, I set up a twitter account as an experiment.

So far, I am unimpressed. I don't know who would want to virtually follow a lawyer around a mundane day. But, should you want to do so, feel free to follow me at http://twitter.com/customslawblog. I'm not going to commit to lots of tweets. We'll see.

While I'm at it, I created a new e-mail account for this blog. E-mail generated from my blog profile had been sent to my Riding Circuits account. I don't check that very often. This should work better. The new address is customslawblog@gmail.com.

Have a good weekend.

Thursday, December 11, 2008

Customs News of the Weird and Book Report

I did read The Lizard King by Bryan Christy and found it thoroughly interesting.  The book is about the legal and mostly illegal trade in reptiles.  I initially thought it would be too much like reading about work.  As it turns out, there was just enough familiar info to make the book interesting.  Don't take that to mean that you need to be a Customs (or Fish & Wildlife) geek to enjoy the book.  It is more about the characters than the law and enforcement. Still, you know you are too far into this when a passing reference to the Lacey Act makes you smirk.

And speaking of animal smuggling . . .

Yesterday, on the flight back from New York, I read this story.  It's short, so I'll just post it here:
A South African man accused of trying to smuggle hundreds of rare chameleons, snakes, lizards and frogs out of Madagascar inside his jacket and luggage was convicted Tuesday and sentenced to a year in jail. Jo van Niekerk, 29, a zoology student from Pretoria, was arrested in November at Antananarivo Airport with 388 animals, among them several species found only on Madagascar, including a fanged snake and a nocturnal leaf-tailed gecko. Around 100 lizards and frogs were pulled from the lining of his jacket, including a dead lizard, officials said.
100 lizards and frogs in your jacket seems crazy.  Read the book; when you see the amount of money involved, you'll understand.

Tuesday, December 09, 2008

Modern Communication

While I was flying from Chicago to NYC this morning, federal agents were arresting the governor of Illinois. When I landed, I and everyone else on the plane turned on their cell phone, Blackberry, iPhone, or Treo. At that moment, I overheard the flight attendant judging all of us for lacking the self restraint to be out of contact for a few hours. Apparently, anyone who turns on their phone when the wheels hit the runway has some sort of mental illness.

As the phones came on, the news of the arrest quickly spread throughout the plane. People spontaneously started discussing it. The out of touch flight attendant was suddenly interested.

The thing about it is that we will probably never be involuntarily separated from news again.

When I was in law school, the Challenger exploded during the day. Hours went by without any news of the event leaking into my brain. I found out on the train home when I read the paper over the shoulder of the guy ahead of me. That will never happen again. The kids in the law school classes I teach now sit behind laptops connected to the internet. The airlines are rolling web access out on planes. Airports of TV news running in gate areas. I have been on cruise ships in the Caribbean with perfectly acceptable internet access.

I realize that none of this is news, particularly to people who read or write blogs. But I think even the people who do not embrace technology, like my judgmental flight attendant, are marinating in data whether they like it or not.

Personnel Issues

Generally, I stay away from news involving Customs and Border Protection personnel behaving badly. There is no point in covering it as it does nothing to explain customs law and could conceivably make a bad situation worse for someone I might have to deal with in the future. So, it works both ways: its polite and it prevents future hassles for me.

I'm going to make a general exception here, without going into details. The first reason is that a loyal reader tipped me to the story. This indicates that it has some level of interest in the community. Second, it illustrates that the reality of compliance is often not the same as the government's abstract notion of compliance.


The story is that a CBP employee has been charged with employing an undocumented worker to clean her home. It is pretty clear that the CBP employee knew the legal status of the worker because the CBP employee advised the worker not to leave the county and try and re-enter. Here is the full story.

In the first year of law school, you have to learn torts. Intentional torts are the large and small attacks we face. Battery, for example, is the intentional, unauthorized, and offensive touching of another. (See, Prof. Trubow, I was listening.) So battery might be a punch in the face or a shoulder brush in the hall (assuming it could reasonably be considered offensive for some reason). What happens to first year law students is that they start to see battery, trespass, libel, and and other torts in perfectly normal human interactions. It takes a while for students to figure out that technical torts (or crimes for that matter) are not always pursued by the victims or authorities because they don't really matter and aren't worth the resources.


Sometimes, people find supposedly principled reasons for failing to comply. Ask any kid with a bunch of illegal music downloads why he or she should not pay damages to the copyright holder. You will get a bunch of tired justifications. "Information should be free," for example, or "the record labels make enough money."


The immigration laws in this country are very similar. At the retail level, where individuals hire baby sitters, housekeepers, and landscapers, the cost of compliance is high. Verifying status is not easy for individual employers and authorized workers are likely to be significantly more expensive. I am not making an excuse to justify it, just pointing out a fact. Large employers with resources and expertise should absolutely be held accountable. All I am saying is that human nature may well dictate that going 55 on the highway is not really expected when everyone around you is doing 70.


In her personal life, this CBP employee was acting like most Americans. Of course, when that behavior comes into direct conflict with her government position, the outcome will not be good. The real question, it seems to me, though, is whether the law needs to be aligned with the realities of modern America.


Does this apply to customs compliance? Should giant importers be given a pass in the name of trade facilitation. While there certainly may be circumstances in which CBP should exercise discretion, in the ordinary course, probably not. But, what about the new or unsophisticated importer? I hope CBP keeps them in mind when drafting regulations and rulings. I hope someone is looking out for the individual or small company who is, in all likelihood, just acting like a regular person.

Wednesday, December 03, 2008

Sailing to Cuba? Do not Pass Go.

UPDATED TO FIX LINK (I hope).

I generally stick to customs law here, but in real life I do export and trade work as well. With that in mind, here is a story I should have covered earlier. It's a sailing story, and I like those. It is also an international trade enforcement story, so that makes it doubly interesting. It seems that the Bureau of Industry and Security charged Michele Geslin and Peter Goldsmith with violating the export control regulations for helping to organize a regatta to Cuba. According to BIS, that constitutes exporting their respective vessels to Cuba without a license and that is illegal. Apparently, BIS had gone so far as to show up at the launch party to explain that export licenses were required for any vessel intending to visit Cuba. The result was a fine of $11,000 each and the denial of export privileges for three years.

The details are interesting. But, more important is that the reported decision is instructive in its explanation of the process. Read it and you'll learn about charging letters, the roles of the Administrative Law Judge, the Recommended Decision and Order, and the role of the Undersecretary of Commerce in reviewing the ALJ decision.

Related to this, I heard today that post-election polling is showing a major shift in the opinions of Cuban-Americans with respect to the Cuba embargo. Apparently, the hard line is melting. Given the important role Florida plays in presidential elections, it will be interesting to watch whether U.S. policy toward Cuba changes.

Monday, December 01, 2008

Cool New HTSUS Tool

Here is an online tool only a compliance geek could love:

Harmonized Tariff Schedule Online Reference Tool

The ITC has launched a cool site that makes navigating the Tariff Schedule easier and links 10-digit HTS numbers to related Customs and Border Protection rulings.

Thanks, ITC. We appreciate the effort.