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Showing posts from April, 2008

Recent Decisions

The courts have been busy. Here are some recent decisions of note: U.S. v. Arnold . This decision comes from the Ninth Circuit Court of Appeals and involves a border search of Mr. Arnold's laptop. This is an issue we have covered previously ( here and here ) and seems to be of growing concern to the general public. The question presented to the Court was whether Customs and Border Protection may examine the electronic contents of an arriving passenger's laptop without reasonable suspicion that it contains evidence of a crime. When Mr. Arnold arrived at LAX from the Philippines, CBP selected him for secondary review and asked him to open his luggage. There is no reason given for his selection. CBP then asked Mr. Arnold to turn on his computer, ostensibly to see if it worked. When the computer had booted up, a second CBP officer reviewed photographs stored on the computer and found an image of two nude women. Note that there is nothing in the decision to indicate that th

Penalties: A New Priority

Recently, Customs and Border Protection officially designated penalties as a Priority Trade Issue . I am putting this in the same category as the attempt to gut first sale valuation, the restrictive reading of lease-like arrangements in 9801, and the decision to bring the Ford recordkeeping case. That category is "Things that make little sense." Read the notice. We need to dissect it a bit: The trade fraud penalty process is a PTI because: 1) considerable CBP resources are expended to achieve modest penalty collections; and 2) a penalty is often the only tool available to CBP to deter non-compliance in the trade environment. This seems to indicate that CBP wants to focus on collecting more revenue through its enforcement activity. What follows from that is that demands will be higher and mitigation less generous. The Penalties working group will assist other PTI working groups in developing specific instructions for the assessment of penalties related to the individual

Ground Breaking for the NAFTA Super Highway?

This New York Times article includes a photo pf President Bush, Canadian Prime Minister Harper, and Mexican President Calderon lifting shovels of dirt. In reality, they are planting a tree in New Orleans, site of what is likely their last summit as a group before the end of the Bush administration. The article discusses Mexican and Canadian views on NAFTA and the current political and economic climate in which NAFTA has become an election issue. The picture, no doubt, will soon be buzzing around the Internet as evidence that the three leaders are continuing to work on their secret plan to merge the three countries and build a gigantic super highway through the American heartland. All of this is supposedly being done under the watchful eye of the super secret Security and Prosperity Partnership and at the direction of the Council on Foreign Relations . The article actually shows that both Canada and Mexico are comfortable with the NAFTA as is. That means it will be very difficul

The Pen Is Stronger

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I found this Customs and Border Protection ruling to be interesting in a let's-keep-the-basic-in-mind kind of way. It involves the country of origin marking on pens. The pens were marked in raised letters on the barrel but the marking was in the same color as the pen. Customs calls this "blind marking." Also, the marking--as one would expect on a pen--was quite small; just 1/16 by 1/4 of an inch. Lastly, the pens were to be decorated with logos or slogans and were, at the time of importation, printed with an identifier for the pen style. It's this last part that seems to have been the problem for the importer. Customs held that the small, blind marking was not sufficiently conspicuous. Part of its reasoning seems to be that the pen is designed and intended to have more conspicuous printing applied to it. Customs, therefore, required a better marking and suggested contrasting colors. This is the great part: As evidence of acceptable marking, counsel for the importer

NAFTA Drawback is STILL Constitutional

A while back, this issue generated a lot of good comments . Thanks to the Federal Circuit , we can start that again. In NuFarm America's, Inc. v. United States, the Court of International Trade held that the requirement that importers pay customs duties within 60 days of the export of goods to a NAFTA country that previously entered the U.S. under a duty deferral or waiver program did not violate the export clause of the Constitution. The Federal Circuit agrees with the CIT's analysis of the allegedly offending regulation. According to the Court of Appeals, the regulation imposes a duty on the imported goods by reason of their having been imported. The exportation only triggers the timing of the payment of the import duty. I'm still not 100% comfortable with this outcome. If this merchandise were imported to a non-NAFTA country, there would be no duty liability. The duty liability on attaches when the goods are exported to a NAFTA country. While I get that the dut

President Forces Vote on Colombia FTA

President Bush has transmitted the U.S.-Colombia Free Trade Agreement to Congress. Under the requirements of the fast track process, this move forces Congress to vote on the deal within 90 days. Unlike most legislation, Congress cannot amend the bill; instead, this is an up or down vote to approve or reject the pact. As an aside, unlike a treaty, this goes to both houses of Congress rather than just to the Senate for ratification. This will likely prompt a fight as most Democrats have come out against the deal. Here is a news story on the move.