Customs Law

I am treading lightly. It turns out, people read this stuff. The last time I talked about sec. 1625 and the revocation or modification of rulings or treatments, I got chewed out (with some justification). But, here we go again. This time, I freely admit I am writing this not out of a disagreement with the judgment but because I had a hard time piecing together what happened. Maybe you did too. In Motorola, Inc. v. United States , (slip op. 06-165), the issue was whether 900 bypass entries or pre-classification rulings constitute "treatment" for purposes of 1625. If so, Customs should have engaged in the 1625 notice and comment process before issuing a ruling changing the classification in a way unfavorable to Motorola. The Court does a very thorough, well-reasoned analysis finding that bypass entries are not a treatment triggering section 1625. The regulations (19 CFR 177.12(c)(2)(ii)) state the following: The determination of whether the requisite treatment occurred will be ...

Here is a link to another article on counterfeit enforcement. This really must be one of the hot issues in CBP these days. Oh, and a Happy Thanksgiving to all who care about such things.

I saw this story a few days ago and passed on blogging it. It came up in my automated Google Alert for CBP. Unfortunately, the first site on which I saw it reported was NSFW , if you know what I mean. Now, it is showing up in the news without illustrations. The story is simply that CBP arrested one Timothy Boham after he was questioned at the border in Arizona. Apparently, when questioned he volunteered that he was the subject of an arrest warrant in Denver for murder. Generally, that is an answer that will lead to your arrest. The reason the original link was NSFW is that Mr. Boham is an "actor" in gay pornography where he goes by the name Marcus Allen. Which, of course, makes me wonder whether this Marcus Allen has considered filing for trademark protection for his name.

Apparently, it is not just Ford that has come under scrutiny from Customs and Border Protection for NAFTA certification. Here is the text of a press release that pretty much speaks for itself: WASHINGTON -- U.S. Customs and Border Protection in San Diego has reached a $10 million settlement with Pioneer Speakers, Inc. for violations of Nafta rules and record-keeping requirements. The settlements are in lieu of fines totaling more than $46 million that accrued against Pioneer in two unspecified years, according to a Customs press release. Customs said that Pioneer provided false claims for preferential treatment for speakers imported from Mexico. The speakers were assembled from parts made in another country, so do not qualify for Nafta duty preference. Pioneer also failed to keep proper records on the imports, Customs said. A million here, a million there, pretty soon these penalties get to be real money. Like so much else in this business, there has got to be an interesting story behi...

Looking to pick up a fake Rolex on your next trip overseas ? Careful. Customs is looking for you. Well, really they are looking for larger quantities, but you get the point. Here is an article posted by the State Department on the increased international attention being paid to counterfeit merchandise. The article says that seizures have doubled since 2001. I am going to speak on this topic at John Marshall on Nov. 30. Here is the brochure . If you are smuggling, don't assume you won't come under suspicion just because you look like a respectable, non-threatening civilian. That's probably what 60-year old Carmen Grado Franco thought. At least up until she was busted at the port with almost 200 pounds of marijuana and a bit of cocaine.

The USTR announced yesterday (11/14/2006) a WTO Appellate Body finding that the EU fails to administer uniformly its customs laws with respect to liquid crystal display monitors. While this might seems like a narrowly focused issue, it has broader ramifications. First, the decision reaffirms the important principle that the EU needs to have uniformity across its 25 member states. This should be true for all merchandise, not just the liquid crystal display monitors. Second, the Appellate Body also held that the original panel should have considered the broader question of EU uniformity rather than limiting it to the LCD display question. The full report and background is available here from the WTO . In the U.S., this is seen as an important step toward giving exporters a uniform set of rules in Europe and, therefore, reducing costs and other burdens in trade with EU members.

It's odd that I feel bad when I don't post for a while. I try and post twice a week and to have at least one post on topic. When I travel, I find it harder to post and I have been on the road lately. Last Monday, I moderated the Administrative Procedure Act panel for the CIT Judicial Conference. From where I sat, it seemed like an interesting panel. Boiled down to its core, the conclusion is that the APA has no real role in CIT cases brought under 28 USC 1581(a)-(h) because those cases are either de novo or have a standard of review set in a different statute. But, the APA is directly implicated in 1581(i) cases. How the APA applies will depend on the nature of the case and the questions of both law and fact. It is clear, however, that more than just the "arbitrary and capricious" shorthand is applicable. From NY, I went to Miami for the ABA Section of International Law Fall Meeting. There was an excellent discussion there about "new" opportuni...

Customs and Border Protection has announced a new program to make it easier for pre -registered recreational boaters to return to the U.S. after visiting foreign ports. The program, called the Local Boater Option is only available in select ports from Tampa to the U.S. Virgin Islands. Pre -registered arriving vessels will only need to report in via phone. Everyone else has to arrange for the normal face-to-face screening. Seems like a good idea as long as the 2007 Terrorist Regatta is not in town.

On Monday, November 6, 2006 the previously unknown to me Association of Corporate Travel Executives issued a warning to its members about carrying laptops in international travel. The association is rightly concerned about the risks to corporations of having a laptop seized as evidence at the border and losing access to important corporate information. I've written on this before . At that time, though, I did not think of it in terms of corporate compliance. It is an issue. If one of your managers is traveling abroad with a computer containing sensitive information, your corporate policies should prohibit that person from storing any illegal or questionable information on the computer even temporarily (Customs and Border protection can look at deleted files, Internet caches, etc.). What you are worried about here is illegal information. There is no problem with your executives having a computer chock full of pictures of their kids and pets or the latest version Grand Theft Auto...

Customs recently issued a ruling quite wisely stating that an electronic signature would be acceptable on a NAFTA certificate of origin. OK, fine. This is hardly newsworthy since copies of COs are acceptable. The interesting thing here is the distinction between a run of the mill electronic signature and a digital signature. The electronic signature at issue in the ruling was a bit map graphic of a handwritten signature. For all intents and purposes, it is the digital equivalent of a rubber stamp and ink pad signature. Don't get me wrong. I think the ruling is fine. There is no reason to require that a human being take a pen in hand and make his or her mark on the document to authenticate it. Customs correctly noted that the law has long recognized that anything placed upon a document with the intent that it signify that the person making mark agrees to the contents, is a signature. That is why illiterate people used to "make their mark" with an X on a document o...

News reports from down under (where women glow and men chunder ) say the U.S. has banned the importation of the Australian culinary staple Vegemite . This is a serious issue. One blogger at Homeland Stupidity has done a little investigative journalism and ordered a sample from Oz. It appears to have arrived without delay , leading to questions on whether there is, in fact, a ban. Aussie newspapers have quoted a Kraft spokesperson as explaining that the folate added to Vegemite is apparently only permitted in U.S. grains and cereal products. When all else fails, I turn to Snopes , which declares this story to be false. But, the explanation clearly indicates that U.S. rules prohibit boosting folate in non-grain food products and that commercial importations would be a violation of U.S. regulations. Snopes, however, concludes that because the FDA has not asked Customs to seek out Vegemite in the possession of arriving passengers, the story is false. I think they need to parse thi...