Customs Law

By now it is old news that Customs and Border Protection has published the interim final rule on the new Security Filing popularly known as 10+2. I'm going to assume that if you find you way to this blog you know what 10+2 is all about. If not, read this 55 page notice . So, I'm just going to post a few observations: Regarding enforcement, Customs has said that it will show restraint during a transition period as importers and carriers implement 10+2 systems. This restraint, though, is dependent on a showing that importers are making satisfactory progress on good faith efforts to implement the requirements. This period of flexibility will last for about a year from the effective date of the rule. That means until about January 26, 2010. After that, an importer's compliance efforts can be considered as a mitigating factor in an enforcement action. In case you are wondering, enforcement of 10+2 (technically known as Importer Security Filing, Vessel Stow Plan, and Container St...

I can't resist posting this. I received a customer survey request from Electronic Arts. I have detailed my problems here. I was very happy to respond and let them know that the game still does not work and their customer support has been less than effective. But, when I clicked the link, this is what I got:

I'm back from the Court of International Trade Judicial Conference. We had a good time, as always. It was down at the South Street Seaport, which has its touristy aspects but still reflects old maritime NY. I moderated a panel on New Developments in Customs Law. Basically, we talked a lot about rule making and modifying policy. The point of most debate was the extent to which Customs and Border Protection can find ambiguity in a statute that the Court has found to be clear on its face. I say they can't but opinions differed. The speaker on this point will say that is an unfair characterization and I am willing to be corrected, but that is what I took from it. Another point of debate is what counts are an interpretive ruling and decision for purposes of triggering the notice and comment requirements for revoking or modifying a ruling under 19 U.S.C. 1625. I think it was an interesting panel. I would be more than thrilled if folks who were there would consider this a space to con...

I bought a copy of the PC game Spore for Jr. It seems like a cool way to learn about evolution (at least a cartoonish version of it) and any game that does not involve broadswords is an improvement. But, the darn thing does not fully work. Normally, I am the go-to tech guy in my family. I generally can solve most PC issues and I am not put off by moderately complicated tasks like swapping out hard drives or setting up wireless networks. Overall, I would say I rank in the above average category for computer literacy. That is why it is so annoying that I can't get this thing to work. Specifically, I cannot log in to the game. It does not recognize that my computer is solidly connected to the internet. This means we can only play with local data and--importantly--can't get the patches to update the game. I am not griping about this without having put in effort. I have done the following: Sent a screen shot of the error message to EA Sent a DirectX diagnostic log to EA Configured m...

Remember National Semiconductor? This is the penalty the Court of International Trade awarded interest on unpaid Merchandise Processing Fees under 19 U.S.C. 1505(c). This provision is the law that gives Customs and Border Protection the right to collect interest on unpaid duties and fees. The Court also assessed a $10,000 additional penalty under 19 USC 1592(c)(4)(B)(i.e., the prior disclosure statute). The Federal Circuit reversed that decision and remanded for a new determination. According to the Court of Appeals, 1505(c) does not provide authority for the Court to award interest as part of a penalty case. The second time around, the Court of International Trade awarded the maximum penalty allowed in the prior disclosure (i.e., the interest owed) plus pre -judgment interest. Today, the Federal Circuit affirmed the maximum penalty and reversed the pre -judgment interest. Here is the opinion . In analyzing the maximum penalty, the Federal Circuit noted that how the Court of ...

Here are the details for the December 10 seminar in New York.

On December 10, 2008 I'll be speaking at a seminar in Manhattan.  It will be me and my partner Rick Van Arnam talking about Customs enforcement, penalties, and compliance.  It's a half day.  The International Compliance Professionals Association  is co-sponsoring.  The details are: December 10, 2008 8:00 AM to 12:00 PM Kitano Hotel 66 Park Ave (at 38th) New York, New York 10016 $50 ICPA Members $65 Non-members 8:00 Registration and continental breakfast 8:30 Part I – Understanding the risks Commercial Fraud and Section 1592 What constitutes a violation Understanding the concept of materiality Quantifying possible exposure The prepenalty/penalty process What is subject to mitigation vs. cancellation The prior disclosure process Understanding Section 1595(a) When does it apply – admissibility issues, currency, trademarks etc. Understanding the seizure/forfeiture process Avenues of relief from remission to court Special Situations Demands for redelivery Marking duties Enforcement ...

A few things worthy of note: Totes Rehearing Denied The Court of International Trade has denied dual requests for a rehearing in the Totes case challenging the constitutionality of gender-specific rates of duty on gloves.  You probably remember that the Court previously dismissed the case on technical grounds but permitted the plaintiff to refile if its case.  My earlier post on  that is here .  In the motion for rehearing, the plaintiff asserted that the discrimination is facial and, therefore, plaintiff need not plead discriminatory intent or effect.  For its part, the United States argues that the case should be dismissed on jurisdictional grounds because the plaintiff never filed a protest of the underlying liquidations.  This is the "exhaustion of administrative remedies" argument, and it fails here.  The Court holds that there is no decision by U.S. Customs and Border Protection to protest.  The importer is not challenging the tariff classification nor the rate of duty...

Congratulations. In the coming months you will have many important decisions to make. Not the least of which will be your Homeland Security team. Feel free to call.

Warning: Off Topic First, I am peeved at myself for taking the small chainring off my bike. I had a three-ring crank set and took the small ring off to save weight. This image will give you an idea of what I am talking about, although it is not my exact gear. It turns out that the relatively minute amount of weight is completely unnoticeable. I would do much better trying to take 20 pounds off the saddle (if you know what I mean) than saving a few grams on the bike itself. Moreover, on those occasions when my chain jumps off the chainring, it now becomes almost hopelessly entangled in the lugs where the granny ring used to attach. It is very annoying. I know I need a new chain and that I should lubricate more often, but I still find this makes me feel very stupid. To make matters worse, I have no idea where that chainring went; so I can't replace it. So, to avoid a similar fate, I as this question: Does anyone have experience with rigid boom kickers in lieu of a topping l...

A while back, an anonymous reader posted a comment to my post about the case in which Customs and Border Protection summarily denied a protest relating to the detention of merchandise in an origin case. The original post is here . The issue I raised came down to whether Customs and we should assume that importers who end up presenting fraudulent origin documents to CBP are victims or accomplices. Obviously, there will be cases in which either one will be correct. But overall? What do you think? The commenter said this: The importer is almost unfailingly complicit when these types of dual documents are used. And these companies have no reservations in challenging adverse determinations against their false documents because the government does not have the resources to verify overseas production (ICE did not and will not take this kind of case, leaving CBP to its own devices). Attempts at informed compliance in these instances do not lead to future compliance as you suggest; it acknowled...