Posts

Showing posts from 2005

Privilege & Waiver & Complaints: Oh, My!

The Court of International Trade had an interesting question in the latest chapter of the Optrex penalty litigation. To understand this, you need to know about the first chapter. Optrex is an importer of liquid crystal display devices. It ran into a classification problem and received a notice of penalty from Customs. So far, this is fairly routine. What makes it interesting is that Optrex claimed that there should be no penalty because it had relied on advice of counsel, which is evidence of reasonable care. Hearing that, Customs said, "prove it" and asked to see the advice. Optrex declined citing attorney-client privilege. Obviously that put Customs in a bind. It could not make any kind of reasonable care decision simply on the basis of Optrex's assertion that it sought the advice of counsel. At the same time, Optrex has a right to assert the privilege. It also has a right to waive the privilege; either on expressly or through its actions. In Court last yea

Customs Goes MTV

I have repeatedly said that the work CBP does is important. For the most part, CBP handles its job in a professional and respectful way. It also needs a bit of marketing to let people know the important job it does and may need to attract some new folks to do it. That is probably why it has posted some videos explaining Customs to the world. I am particularly taken by this one . It has "Miami Vice-ish" music; James Bondy shots of fast boats, cars and even horses; and some peeks at high-tech looking gadgets. It also has a bit of pathos in that CBP personnel are shown saving lives in what appears to be the desert along the southern border. You know they are saving lives because the video includes a helpful title sliding across the screen saying "Saving Lives." Other titles include "Preventing terrorism," "Securing Our Borders," and "Seizing Contraband." The two things I like best are first that the file is actually called "cbp_musi

Turf Fights & Job Openings

It seems that the press is picking up on the apparent mess at Homeland Security. This Newsweek article notes that the issues go way beyond my question of whether it makes sense to keep CBP and ICE as two separate agencies. It turns out that all three border control agencies--Customs & Border Protection, Immigration & Customs Enforcement, and the Citizenship & Immigration Service--all lack a leader. In addition, there are apparently ongoing issues between CBP and ICE relating to turf and money. The article says these fights are sapping morale and debilitating the agencies. So, let's get it over with and merge at least CBP and ICE. And, since the President seems to be having trouble finding a leader for the agencies, I hereby volunteer for the top job in the merged agency. Mr. President, feel free to call me at the office.

Something Squirrely at CBP

This doesn't require much in the way of comment. It is worth noting that the story was carried in at least 40 media outlets checked by my automated news search.

Broken heroes on a last chance power drive

Sorry Bruce, make that "power strip." It's a funny thing that Customs still puts out the Customs Bulletin . Seems like there is no point. Between a posting to its web site and a Federal Register notice, it seems like they should be able to have everything sufficiently public. But, they still put it out. And, every now and then, I find something surprising in it. Today, I discovered that your basic surge protector-type power strip is not actually a device for protecting electrical circuits under 8536.30.80, which has a duty rate of 2.7%. Why would I ever have thought that? Well, because power strips generally include a fuse or circuit breaker and also circuitry to filter out spikes in voltage. The reason you use them is to protect the sensitive circuits in your expensive electronics. So, on its face, 8536 seems like a good heading for their classification. This makes so much sense that Customs issued a bunch of rulings to this effect. Not so fast. Customs correctl

Kate Moss not on the Most Wanted List

Immigration and Customs Enforcement posts its list of the most wanted criminal aliens . These are all bad guys and there is really nothing funny about the list except that model and alleged cocaine abuser Kate Moss is not on the list. Why am I thinking about this? Because this article quotes a Customs & Border Protection spokesperson saying that if Kate Moss is convicted of a crime in the U.K., she won't be admitted to the U.S. to work. Consequently, it appears that Ms. Moss is staying out of the U.K. and not planning to cooperate in the investigation. Maybe she will get the Noriega treatment.

Is this legal?

Is it legal to sell a Customs & Border Protection uniform patch, like this person is doing? I know I am the customs lawyer and I am supposed to have the answers to these questions. But, I'm not sure about this and I don't plan to look it up. If anyone knows, please drop a comment.

Customs Does Gucci a Solid

Customs maintains an active enforcement program relating to intellectual property laws. This is the job of the Intellectual Property Rights Branch at headquarters. The job of the IPR branch is to prevent the illegal importation of goods bearing infringing trademarks, trade names, or unauthorized reproductions of copyrighted works. As I mentioned previously, they are also responsible for the enforcement of laws relating to traffic in cultural properties . I have always thought that heading up that branch would be a great job. In law school, I was very interested in intellectual property law and actually went to the trouble of getting an LL.M. in the field. It comes in handy now when clients have IPR related issues come up at the border. The easy cases for Customs to deal with involve counterfeit merchandise. This is what happened with Gucci (plus Coach and Burberry) at the port of Norfolk. Customs seized a shipment of almost 2,000 boxes of counterfeit handbags, wallets, and backpacks

So, Maybe I am Right

Does former Customs Commissioner Bonner read my blog? I doubt it. But, we appear to agree on one thing: CBP and ICE should be merged into a single border enforcement agency. I said this in a previous post . Now, the former Commission has publicly said the same thing to the Washington Times . Does that make a groundswell? ADDENDUM (12/13/2005): Oddball blogger and conservative columnist Debbie Schlusse l agrees with me, too. Now I feel dirty.

Two Quick Notes:

That must be what they mean by "trade facilitation." It has recently been noted in the press that the uniforms worn by our Border Patrol are purchased from a company in Tennessee that has outsourced the manufacturing to Mexico. Hence, U.S. Border Patrol Agents are wearing uniforms with a "Made in Mexico" label on the collar. According to the Border Patrol union president, "It's embarrassing to be protecting the U.S.-Mexico border and be wearing a uniform made in Mexico." I guess I don't see the issue. It would be embarrassing for a Border Patrol Agent to be, say, employing an illegal alien as a housekeeper. Wearing a uniform made in Mexico seems OK. At least it is properly marked with its country of origin. Blogger held up in Immigration A Canadian blogger who online claimed to be from New York, rather than Toronto, and who carried a magazine mailed to him at a New York address got detained when trying to enter the U.S. The story is reported h

Congratulations are in Order

Leo M. Gordon, presently Clerk of the U.S. Court of International Trade, has been nominated to be a Judge of that very Court. He will likely fill the slot vacated by Judge Aquilino who has taken Senior Status. But, that is not the main point. The main point is that for what is very likely the last time in his life, Mr. Gordon is listed next to and ahead of Judge Samuel Alito on this Senate list of nominees.

One Face at the Border. No, two!

It has never been clear to anyone why in the process of making the Department of Homeland Security, half of Customs was carved off into another agency. Previously, we had the U.S. Customs Service in the Department of Treasury. Customs had compliance folks, entry personnel, and investigative agents (known as "Special Agents"). When Customs moved to Homeland Security, it was merged together with Immigration and Naturalization folks and some Agriculture Inspectors. The stated goal was to produce "one face at the border." This required cross training Customs Inspectors for agriculture issues, Immigration inspectors for customs issues, etc. There is a certain undeniable logic in this. But, the Special Agents (and their Immigration equivalents) were moved into a wholly different bureau called Immigration and Customs Enforcement. This has not worked all that smoothly. There is growing pressure in Washington to merge the agencies. That would make sense. Special Agents are

Another Blogger Exposed

Sadly, Underneath Their Robes is no more. This was a great blog that focused on the judges of the federal judiciary the way People Magazine focuses on Jennifer Aniston and Angelina Jolie . The blogger, who went by the nom de blog of "Article III Groupie" and was apparently female, turns out to have been a male Assistant U.S. Attorney from New Jersey. According to this Law.com article, he was frustrated that he received no credit for the great success of his blog. He was voluntarily outed in a New Yorker column by Jeffrey Toobin. Now, following a discussion with his boss, the site is locked down. Too bad we won't be able to follow the Alito confirmation process through UTR.

People who need my services but don't know it.

Prospective client 1: Brooke Burke . According to this New York Times article , Ms. Burke (and other celebrities) have endorsement deals with foreign-based internet gambling sites. These deals are potentially illegal under federal law. Now, I am not a criminal lawyer, but there is a trade law issue here. In March of 2003, Antigua and Barbuda requested WTO consultations with the US to discuss whether US anti-gambling laws prohibiting on-line gambling through sites operated outside the US violated US commitments under the General Agreement on Trade in Services (GATS). In November of 2004, a WTO panel held that the US had, in fact, violated its commitment to permit free trade in services including gaming. So, it would seem that the US might have an incentive to loosen up these laws and Ms. Burke could keep her gig. Unfortunately for her (and the others including Jesse Ventura and James Woods), the US appealed and won in an April 7, 2005 Appellate Body Report . The report says the US can

Superior It's Said, Never Gives Up Its Whales

Image
Today is the 30th anniversary of the wreck of the Edmund Fitzgerald . Those of us who live near the Great Lakes know that they are easily whipped up by storms and can provide treacherous sailing. I have a small sailboat (the one in the picture) on Lake Michigan and, on occasion, I see large ore boats coming and going. They are an impressive sight among the more pedestrian sailboats, fishing boats, and cruisers. Personally, as interesting as a lake passage might be on one of these boats, I have no interest in being somewhere between Milwaukee and Ludington when a storm hits. You can find out everything you ever wanted to know about Great Lakes shipping here . One cool feature on that site is real time ship location reporting. One thing I have never seen in Lake Michigan is a whale. I'll keep looking. Perhaps these folks can help.

Bring Out Your Dead

President Bush just returned from a summit in South America. While there, he unsuccessfully tried to defribulate the comatose talks to create a Free Trade Area of the Americas . This agreement is sort of the Holy Grail of regional pacts. It would link 34 western hemisphere democracies in a loose trade bloc (think NAFTA writ large, not the EU). Cuba, by the way, is one country on the outside looking in. It turns out this is unlikely to happen. The US and Brazil are at loggerheads over agricultural subsidies and Venezuela is not exactly on good terms with President Bush ( or Pat Robertson ) either. The bigger issue for the FTAA may just be that there is a bigger issue: finishing the Doha Round of WTO talks. That also looks like it need life support. The US and EU have made a proposals over the past month to reduce tariffs but neither side is happy with the other's proposal. The EU, driven by the French, insist the the US proposal cuts subsidies too deeply. Still, the US proposal is

Camera Toss (The Blog)

OK, I admit this is silly . It is also not a good way to treat a digital camera. And, I know David Pogue of the NY Times already mentioned it in his blog (which people actually read). But, it is oddly compelling.

Basement Cycling

The bike commuting season is over; at least for me. It is too cold and too dark. I know there is gear to resolve these issues. I am the king of gear. I love gear. I own expensive winter cycling clothes, Neoprene shoe covers, gloves and glove liners. No matter what I wear, my fingertips become painfully cold when it is under 50 degrees outside. As to lights, adding lights to my bike would involve an HID/LED system and I am not up for a $400-$500 accessory just so I can ride at night. My alternative is the basement criterium . I prop my bike up in a trainer not as nice as this one , and then ride for a while. As you might imagine, riding to nowhere in the basement can be painfully boring leaving my mind to wander where it should not. So, if you are similarly afflicted, here are things to do to keep you going for a couple hours: Watch movies involving cycling such as The Bicycle Thief (little actual riding), Quicksilver (crazy messenger riding), Breaking Away (a great movie), The Tr

Heavens! Some Caviar Imports Banned

Image
The U.S. Fish & Wildlife Service has banned the importation of beluga sturgeon caviar (and meat) originating in the Black Sea basin. This comes as a blow to luxury buyers in the U.S. who have already been suffering with a ban on these products from the Caspian. This move, consistent with the Convention on the International Traffic in Endangered Species , is intended to force the exporting countries to make progress in implementing conservation programs for the endangered fish. Of course, the fact that caviar comes from this fish, might make it less appealing. There is a lovely description of the production process here . It might be more than you want to know that the fish is stunned once by a blow to the head with a wooden club, then stunned again before it is cut open. This ban also covers personal importations with arriving passengers. First, the Concorde is put out of service. Now some beluga caviar is banned. What's next; a tax on polo ponies?

The Death of the Entry?

A lot of what Customs has to do is routine and painfully dull. But, it is important. Think about the thousands of passengers and cargo containers that present absolutely no issues whatsoever. Most people tell the truth when entering the country and most importers properly declare their goods. The tricky part is letting the legitimate trade happen while finding and stopping the bad guys. One of the current trade facilitation projects is the Periodic Monthly Statement under the Automated Commercial Environment. The Periodic Monthly Statement (which is still technically a test program) lets participating importers identify entries and pay Customs for them by the 15th business day of the following month. This creates an interest free loan of up to 45 days for importers. It also simplifies recordkeeping and allows importers to create national or port summaries of activity. Until recently, the only way importers could take advantage of the Periodic Monthly Statement was to have an ACE Port

Gee, Trade Negotiations Are Confusing

There is lot going on in the lead up to the next meeting in the Doha round of trade negotiations. The U.S. is pushing what it calls the Doha Development Agenda which consists of four components: Agricultural market access (with a limited emphasis on the elimination of subsidies) Industrial products market access Services Trade facilitation While trying to promote this agenda of trade liberalization, the U.S. and other developed countries have to balance the different economic needs of the developing world. There are more than a billion people in the world living in poverty. The Doha agenda includes a mandate that developing countries receive "special and differential treatment" to assist them in more fully integrating into the global economy. These countries can opt for more limited liberalization and longer phase-in periods for changes in trade rules. There are lots of competing interests in these talks. The most obvious friction results from the facts that

CAFTA-DR Coming Together

It looks like we might have CAFTA by January 1, 2006. The USTR announced that Nicaragua has approved the agreement. Since I am short on words at the moment, here is the entirety of the USTR statement: Statement of USTR Spokesperson Neena Moorjani Regarding Nicaragua’s Passage of CAFTA-DR 10/11/2005 “We congratulate the Nicaraguan government for passing the Central America-Dominican Republic Free Trade Agreement. “They now join El Salvador , Guatemala , Honduras , the Dominican Republic and the United States in approving the CAFTA-DR. "We have met with representatives of the CAFTA-DR governments recently and we are working towards a target date of January 1, 2006, for implementing this agreement. “This agreement levels the playing field for American workers, farmers and businesses, expands choices for consumers and strengthens democracies with our neighbors.”

No Bonking Zone

Today was the Chicago Marathon in which 40,000 runners competed either to win, make a new personal record, or just finish. I wasn't there; bad knees , and all. I have personally made a significant contribution to the college funds of the children of several orthopedic surgeons and a raft of physical therapists. That is why I now ride a bike rather than run. But, due to a serious downpour, I did not complete the 100-mile ride I had planned for the end of September. Thus, I am feeling envious of the marathoners who finished today. In particular, that means you, P. P is the runner I turned on to Gu when he decided to train for his first marathon. I think that makes me kind of a legal sugar pusher. He finished today at about 4 hours, 34 minutes. For 26.2 miles, that is something to be proud of. For those of you who don't know, Gu is a concentrated carbohydrate gel. When competing in endurance events, Gu comes in very handy to prevent the dreaded and embarrassing bonk . Runners

Blackberry Whine

Here is a U.S.-Canada battle worth watching. Research in Motion, the makers of the ubiquitous and, for some, essential Blackberry wireless e-mail and phone devices has been sued for patent infringement. The U.S. patent holder, NTP, sued RIM for infringing patents relating to its software for transmitting e-mail. RIM's main argument is that its servers are located in Ontario (that's Canada, not California ), which is a separate sovereign country where U.S. patent laws are not in effect. The U.S. Court of Appeals for the Federal Circuit, which also hears appeals from the Court of International Trade, was not swayed by the border argument. The most recent opinion is here . The news media now reports that the Federal Circuit has denied RIM's request for en banc review by the entire 12-member court. RIM faces the possibility of an injunction against sales or operations in the U.S., which, according to the New York Times , is 70% of its revenue. Two interesting things are bou

Twinkies, Anyone?

There are blogs I check now and again and one I am reading start to finish. The former category includes blogs to which I have linked on the right. The latter blog is called The Real-Life Twinkie Experiment . It purports to be the experiences of an identical twin who switched lives with her 2L law student sister. It is well written and entertaining. Thus, I am fairly convinced it is a work of fiction. But, the depiction of the law school experience is pretty compelling if a bit overly dramatic.

No Protesting NAFTA, Really!

For years, Customs has said that importers can't seek a refund of duties paid on NAFTA-originating merchandise via standard refund. The reason for this is that if the importer failed to make a claim at the time of entry and Customs liquidates it accordingly, it made no mistake that can be challenged. At least that has been Customs' take on the question. If you want a post-entry refund, you need to apply for it via a request for reliquidation under 19 U.S.C. § 1520(d). These requests must be filed within one year of the date of importation. The Court of Appeals for the Federal Circuit has now had the opportunity to weigh in on this in a case called Xerox Corp.Vv. United States . Xerox filed protests to seek NAFTA refunds and Customs denied all but one of the protests finding them to be untimely. This is because all but one of the protests was filed more than a year after the date of entry. Customs treated the remaining protest as a request for reliquidation. The Federal Circui

Help Wanted

Anyone looking for a policy job who is willing to relocate to DC should send a resume to the President of the United States. Customs Commissioner Bonner has announced his intention to retire. I'm not sure what the job pays but I'm guessing it comes with decent benefits. You probably also get a pretty high security clearance, lots of opportunity for travel, and a big staff. On the downside, you are near the top of the food chain with respect to Homeland Security. If anything breaks bad via a U.S. port of entry or an immigrant, it will not look good on your resume. Plus, you need to be sure to keep Congress happy. That can't be easy, or fun.

The Tell Tale Saddle

I have been annoyed lately by a creaking sound coming from my bike saddle. It happens almost every time I hit dead bottom on a pedal stroke. This is new, my bike used to be very quiet. I took it to the guys at Turin in Evanston and they lubed the rails. That helped for a few days, but the noise returned. At this point, I am overwhelmed by literary references. The obvious one is to Poe . It is impossible to say how the sound entered my ears, but, once heard, it haunted me day and night. Object there was none. Passion there was none. I loved the old saddle. It had never wronged me. It had never given me a sore or rash. I think it was in the rails! Yes, it was this! The rails creaked the sound of a tick--pale silver titanium rails. Whenever it sounded, my blood ran cold, and so by degrees, very gradually, I made up my mind to take the life of the saddle, and thus rid myself of the tick for ever. Of course, that is too easy. I am drawn instead to Tennessee Williams' Cat on a Hot Ti

Secret Agent Man

How many times have you thought, or heard someone express the thought, that if you structure your transactions to avoid being importer of record, you can avoid most customs liability? That comes up a lot. People think it is beneficial to let the seller be the importer or even have the broker take care of that responsibility. Customs lawyers generally tell clients to shake that thought out of their heads. I say "generally" because there may be situations where it makes sense. Remember, this is just talk, it is not specific legal advice (it is not legal advice at all). Often, the reason we tell buyers that using a third party as the importer of record is not a liability shield is because of the possibility that Customs might treat the buyer as "aiding or abetting" the importer if something goes wrong. Worse yet, the buyer could be a co-conspirator in a criminal enterprise. None of that is good. The Court of International Trade recently issued an opinion basing third

Unsolved Mysteries

Can anyone tell me where I can buy a crystal skull , get a clear photo of Ogopogo , or explain the Coral Castle ? I figure it will be easier to do those things than figure out how to get Google rankings. It is apparent to me that most of the visitors to this site that come via a search engine do so through MSN Search, followed by Yahoo, with Google a distant third. I can't figure out how it is that the search "customs law" gets me number one placement on MSN but relegated me to the second page of Yahoo results. In Google, I have a hard time even formulate a search that finds this page. If the search is "customs law blog," I stay number one on MSN and move up to a respectable number 10 on the Yahoo results. On Google, I was not in the first four pages. Anyone who might read this and has any tips, I'd appreciate them. In the meantime, ignore the following text, it is here for experimental purposes only. Customs law, NAFTA, reasonable care, dumping, counter

Skidding into Deference

Whenever an importer sues the government over duties, the system gives all the breaks to the government. The challenged decision is presumed to be correct. That means the importer has the burden of proving that Customs is wrong. That's not too terrible, as some one has to have the burden of proof and it does not make sense to force Customs to prove that it is right every single time they deny a protest. But, in most customs matters, the Court of International Trade is also required to reach the correct result on the record developed before it. That means the Court looks only to the papers or evidence submitted, not the agency's record. That is what we call de novo review just to make it sound sophisticated. The apparent conflict between de novo review and the presumption that Customs is correct raised questions of how much independent thought the Court of International Trade is supposed to exercise when reviewing to Customs' decisions. Stay with me here, I have a point.

Life in Chicago

Image
I have several things piled up about which to blog. I want to get something off my chest about deference to Customs and there is an interesting new penalty case. But, for now, I offer only this snap shot of life in Chicago. It was taken looking down into an alley while waiting for my cup of coffee at Starbucks today. Having watched the Soprano's a fair amount, I assume the box near the trunk holds mattress covers, a jug of bleach, and some scrub brushes.

Do I Smell NAFTA in the Air?

September? Really, already? September is the cruelest month. Those of us with summer avocations (like cycling and sailing) know that the end of the season is bearing down on us. I have already scheduled a date to get my little boat out of the water for the winter. But, fall also means we enter the heart of the NAFTA season. Those of you responsible for NAFTA compliance should know that this is the time of year to be getting out supplier solicitations for Certificates of Origin. You want to have your required certified materials before the first of the year so that, when your existing CO's expire on January 1, you don't have a gap in your import or production records. Here's three hints that I hope are clear to most people (but I know are not clear to everyone): Don't waste your time an effort sending requests for CO's to every supplier in your database. It may seem obvious, but it is worth noting, that you should only get completed CO's from North American s

It's A Bright Sunny Day in Chicago

Image
Here is a cell phone shot of Cloud Gate, the newly unveiled, fully polished sculpture in Chicago's Millennium Park. Locally, it is known as "The Bean" for obvious reasons. Here is some more detailed info . I say "fully polished" because when it was unveiled last year, there were visible seams criss-crossing the surface. They have now been polished out.

Customs Makes the Brown Bomber Proud

I don't really do sports metaphors, but this one seems to make sense. There is an ongoing prize fight in the usually sleepy area of duty-free stores that is worth mentioning if only because it highlights the fact that Customs (or the Justice Department) can sometimes get obsessed with an issue that does not seem to fit into the big picture. In this corner is Ammex, Inc., which operates a duty-free store and gas station at the Ambassador Bridge between Detroit and Windsor. Not far from the Joe Louis Arena. Because of the way the roads work, there is no way for a car to enter from the U.S. side and return to the U.S. without passing through Canada (if only for a moment). So, everything purchased from the the store is destined for exportation. It just is. Here is a map that kind of proves it. In the other corner is Customs, which, in 1994, denied Ammex's request to be permitted to sell motor fuel at its duty-free store. Customs said because fuel is a fungible item, there is no

Death of a Lobster

One of the reasons customs law is an interesting practice is that you get to learn about a lot of different products. Sometimes, you learn about things you'd rather not. For example, Customs ruled, NY R00821 (Oct. 19, 2004), on the classification and country of origin of frozen raw lobster meat from Canada. Here is how Customs describes the process: They are put into a machine that kills them, using hydraulic pressure to release the meat from the shell. The dead lobsters are separated into different parts, --i.e., separated into knuckles, claws, tails and bodies,--each of which is processed separately. The raw meat is removed from the leg by using rollers, from the knuckles using compressed air, from the claw by opening with a knife, and from the tail by scoring the shell with a blade and then pulling the meat out. After removal, the knuckle and claw meat is mixed together, weighed and put through a vacuum packaging machine. The leg meat is weighed and similarly vacuum packaged. E

My Love/Hate Relationship with Technology

PUBLIC VERSION DELETED APO INFORMATION IS [BRACKETED] I love technology. I also hate it. It is an evil enabler of my base self. Before you start wondering what I have been downloading, let me set the scene. Today, I am in [the south, the deep south]. I am visiting [a great client] here in [a place I shall not disclose]. It is [south] and it is [rural]. I have been here almost 12 hours and I can't recall seeing a foreign car. Many of the towns around here are so small that the population [is in the two digits range]. [The client I am visiting] is in a town [requiring four digits to advertise its population]. The person who checked me into the hotel was proud of the fact that, since my last stay, they have added an elevator to this two-story building. I really don't care much about that. I am, however, very happy to report that they have also added free wireless broadband. She was also very proud to tell me that I am here just in time for the venerable [Local Crop] Festival. D

Thanks to Inter-Alia

I just discovered via Evan Brown, the blogger at Internet Cases.com , that my own blog was Blog of the Day on July 30 at the Inter-Alia blog . Well, how about that? Thanks to Tom Mighell for the nod. Both you guys deserve a link from me (which you now have).

Out and About

Image
I have spent the last several days engaged in American Bar Association activities. Up until yesterday, I had been the Co-Chair of the Customs Law Committee in the Section of International Law. I have held that position for about three years and am now going to move to another role within the Section. I still do not know exactly what that role will be. But, in a lot of ways, the ABA is a great organization and I am happy to do my part. Having the meeting in my home town of Chicago made it even better. I spent a fair amount of time giving advice on what museums to visit ( the Art Institute ), where to get good pizza , seafood , and the best Mexican food . I was directly involved in two programs. The Customs Law Committee sponsored a meeting on the issues relating to the re-importation of prescription drugs. This turned out to be a really good discussion. The panel consisted of an M.D. from the Board of AARP, a Canadian consultant to the pharmaceutical industry, a former FDA official

Ford Compliance Crash

I'm not sure there is much to say about this except: "Oh, my!" There are plenty of big companies all over the country breathing a sigh of relief that this happened to Ford and not to them. What happened is that Ford got hit with a $20 million penalty for failing to properly declare the value of imported merchandise. The decisions of the Court of International Trade (there are two, reported here and here ) are interesting reading. Basically, Ford entered merchandise and failed to mention to Customs that the declared values were tentative. They never got around to notifying Customs of the correct final values even though they apparently understood that they were supposed to do so. The merchandise ended up being under valued and duties were under paid. Ford had a not unreasonable argument about the transaction value being the price paid or payable at the time of export, so it was properly declared. Heck, I have used that myself. But, in this case, everyone knew the price

Do you Know the Way to San Jose, or Tegucigalpa?

CAFTA is a done deal. Last night, the House passed it in a very close 217 to 215 vote. When the President signs it, and the U.S. makes some official notifications, the agreement will come into effect. To make life easy on everyone, this might be timed to happen January 1, 2006, but it could be sooner. Part it depends on whether the other parties have completed their legislative process and made their notifications. CAFTA covers the U.S., Costa Rica, Honduras, El Salvador, Nicaragua, Guatemala, and the Dominican Republic. This will likely be an economic blip on the radar. Apparently, this region exports less to the U.S. than the exports of Virginia. But, the sugar and textile trades fought hard against it along with various labor groups and those who fear the steady march toward a one-world government. For the Bush administration, it is a big win. It shows they can get trade deals done, it shows a commitment to rewarding democratic reform, and it might even help to open some markets t

Don't Try This At Home

I am a gadget guy. I use a tablet PC, have an MP3 player, and a WiFi network. I am only lacking for an HD TV and a hybrid car. I also carry (or carried) a Treo 650 smartphone, which I love(d)and for which I am in mourning. To make a longish story short, do not mix the following: a grande coffee with sugar, a Treo smartphone, and a small sink on a boat. Boats move. Coffee tips. Gravity does its thing. Your phone, marinated in sugar-infused coffee up to two hours will become a surprisingly soggy mess. When dry, it becomes a sticky mess. According to PalmOne, Treos subjected to liquid damage are not repairable. So, following instructions I found on line, I squirted plastic-safe contact cleaner into the keyboard. No dice. The unit turns on but the keyboard has about as much play in it as a brick. The keys just don't move. Figuring I cannot make matters any worse, I have ordered a set of small Torx wrenches to open the thing up, thereby voiding my warranty, which is no good anyway si

The CIT Reaches for False Claims Act Cases

Here is an interesting tidbit: Suddenly, the U.S. Court of International Trade has jurisdiction to hear cases brought under the False Claims Act by the United States. These actions involve civil claims against a party that (in the case of something before the CIT) made a false statement to the United States that resulted in a reduction in customs liability. Technically, this is a "reverse false claim." Until now, most people would have expected these cases to be handled in the district courts. Often, False Claims Act cases arise via a whistleblower who files on behalf of the United States. That is a qui tam action. The case at the CIT, however, was not a qui tam action but was brought directly by the U.S. As a result, the CIT held that the case falls within its grant of exclusive jurisdiction. Essentially, the Court treated the action like a regular old boring customs penalty case. The case, U.S. v. Universal Fruits & Vegetables , is a quick read. The result seems ri

Really Simple What?

On the advice of people who know better than me, I have set up an RSS feed from this site. Click the Feedburner button on the right side of the page for some info. Everything I know about RSS, I learned here . The relevant links are: Atom: http://customslaw.blogspot.com/atom.xml Feedburner: http://feeds.feedburner.com/CustomsLaw There are supposedly many good RSS news readers available including this one , which I am not vouching for. I'll try it too and see how this works.

To Mac and Back

Saturday is the start of the greatest fresh-water yacht race in the world--the Chicago Yacht Club's Race to Mackinac . The course is up the length of Lake Michigan and across to Michigan. It is something like 335 miles, but that is generally as the crow flies. Sailboats rarely get to go in a straight line. The normal approach is either to hug the western shore and try and cross near the top of the lake or cross right away and hug the eastern shore. It all depends on wind and whether you prefer Wisconsin to Michigan. In either case, the strategy is to take advantage of coastal winds rather than get stuck in the middle of the lake with no wind. Figure on two or three days on the water. In the end, you are at Mackinac , which is inexplicably pronounced "Mackinaw," for lots of beer and assorted nautical high jinks. It's not much of a spectator sport, but it must be fun to take part.

How Much Care is Reasonable?

The main thing Customs says about avoiding liability as an importer is to "exercise reasonable care." What the heck does that mean? Customs has put out a lot of information about reasonable care (including this ). Generally, reasonable care is equal to the amount of care a reasonably prudent importer in a similar situation would exercise. That, of course, is a bit circular as Joe importer generally can't tell what a reasonable Jane importer would do. To help, Customs has provided a bunch of examples of what constitutes evidence of reasonable care. These examples (usually in the form of questions) include: Using an expert (including lawyers like me) to assist in compliance activities. Having a competent individual in the organization to review compliance procedures. Providing your expert with complete information about the importation before the merchandise applies. So far, so good. But, sometimes this breaks down. For example, how does an importer exercise reasonable ca

Uh Oh, TiVo!

Well, not really TiVo which is a registered trademark of TiVo, Inc. and I don't want to mess with them. What I really mean is "Uh Oh, I purchased a competing product manufactured by Sony Corp. which is wholly unrelated to TiVo, Inc. and TiVo-brand hard-drive-based personal digital video recorders." Unfortunately, that is harder to rhyme. See, I have an LL.M. in intellectual property law and these things make me nervous. Plus, I feel for any company with a brand whose name is so ubiquitous that it moves toward becoming the generic term for the product. Companies like Xerox, DaimlerChrysler (makers of Jeep-brand vehicles), Johnson & Johnson (Band-Aid brand bandages) and Kimberly-Clark (Kleenex brand tissues). Keep up the good fight, TiVo. Don't go the way of aspirin. Anyway, I got one of these gizmos because I don't have cable and don't watch much TV. Makes sense? It does to me. You see, when I do want to watch something, I get really annoyed when I miss

CBP Strikes Back!

Wouldn't it be nice if buried deep in the fine print of your employment contract there was a clause that says when you disagree with the instructions from your supervisor, you can disregard them? Image that. Now assume that your employment contract is the United States Constitution. Your supervisor is the federal court system. You are Customs. Turns out that Customs has essentially that authority. It comes from 19 USC § 1625(d) and 19 CFR § 177.10(d). Those two provisions give Customs the authority to "limit the application of" the decisions of the Court of International Trade and the Court of Appeals for the Federal Circuit to the specific entries before the court in a specific case. In other words, when Customs loses a case or does not like the reasoning of a case, it can say: "Well, you win on that entry but we will not apply that decision anywhere else. Possibly not even to the next entry of the same stuff." To its credit, Customs doesn't exercise thi