Customs Law

They can't seem to leave the Lacey Act alone. This was introduced February 24: S. 462 Boxer: A bill to amend the Lacey Act Amendments of 1981 to prohibit the importation, exportation, transportation, and sale, receipt, acquisition, or purchase in interstate or foreign commerce, of any live animal of any prohibited wildlife species, and for other purposes. So far, the text is not up on Thomas. Don't get me wrong. I am a big fan of prohibiting the illegal trade in animals. I'm OK with the bill (at least with the title). It just seems like this is not a good time to be piling on the poor Lacey Act.

I know, renegotiating NAFTA is the talk of the moment. It was a campaign promise and apparently came up during President Obama's first foreign trip, which was to Ottawa. One issue that has never been satisfactorily worked out, at least from a legal perspective, is the trucking dispute. The agreement clearly lets Mexican domiciled trucks have full access to the U.S. market (and, therefore, to Canada). But, this has never been implemented. There have been pilot programs in fits and starts, but it has never become the law. And, it still won't. H.R. 1105, the recently introduced omnibus appropriations bill effectively tries to prevent it again by prohibiting the use of funds in furtherance of the program. It's hard to find in the bill. Look at page 983, in section 136. Here's my question: Does anyone in Mexico care about this? I understand that people on the U.S. side might have concerns as varied as job loss, safety, and environmental protection relating to more trucks on...

SKF USA, Inc. v. Customs and Border Protection is a hefty opinion, so I am going to blog it in two parts. Here is the majority opinion. The issue is whether the Court of International Trade properly held that the Continued Dumping and Subsidy Offset Act of 2000 is unconstitutional. The Act, more commonly known as the Byrd Amendment, provides that petitioners and interested domestic producers who supported the initiation of a dumping or countervailing duty case may receive collected AD or CV duties in an amount equal to their expenses associated with the investigation. The plaintiff in this case had not supported the petition. Nevertheless, it sought "Byrd money." Customs denied the request on the ground that SKF did not qualify under the terms of the statute. The Court of International Trade made two holdings. First, the requirement that a domestic company support the petition violates the equal protection clause of the fifth amendment. Second, that the unconstitutional supp...

I've been asked a couple times about the process for making claims for duty-free treatment under the Peru Trade Promotion Agreement. Customs and Border Protection has now issued guidance. The first document is a memo doing a good job of summarizing the terms of the agreement with respect to rules of origin. The second document sets out the data elements necessary to make the claim. One thing to ponder: Why is the rule on sets so strict in this agreement? Talk amongst yourself.

Almost snakes on a plane. In my continuing fascination with small animal smuggling, I saw this article about a 24 year old man stopped at the airport in Sydney, Australia trying to board a plan carrying 40 lizards and four snakes. At least he had the decency to put them in his luggage rather than his pants, as is often the case. And, for those wonder, yes I will get to the Byrd decision. Keep in mind, though, that the thing has been repealed. So, the decision is largely academic.

What's with the dumping cases suddenly being interesting? The Federal Circuit has reversed the Court of International Trade and held that the Byrd Amendment is constitutional. The amendment provided disbursements of antidumping duties collected to members of the domestic industry that supported the petition. In this case, the plaintiff argued that it was a member of the domestic industry and was entitled to disbursements despite having opposed the petition. According to the plaintiff, the requirement that a company support the petition violated its right to equal protection and to free speech. Unfortunately, the decision is 81 pages long and I am not going to read it tonight. Here is the link: http://www.cafc.uscourts.gov/opinions/08-1005.pdf Consider this post a down payment on a future analysis.

H.R. 1082. A bill to prohibit the importation for sale of foreign-made flags of the United States of America; to the Committee on Ways and Means. Now, in the 111th Congress, a bill that has died in the last four congresses.

Yes, I feel chastised by the comment to a previous post. Here are the details on the always excellent Georgetown Law CLE International Trade Update for 2009. Here is the brochure . And here is the blurb: Designed for both new practitioners and experienced trade and customs lawyers, the international Trade Update provides you with critical knowledge, skills and practice development ideas. This is a unique opportunity for you to spend time with experienced lawyers and government officials exploring the up-to-the-minute developments in international trade and customs law. Not only will you receive practical tips on how to help your clients solve complex problems, but you will analyze the projected trends for the coming years through plenary and specialized break-out sessions.

News flash: The Commissioner of Customs and Border Protection has announced his intention to retire at the end of the month. Commencing March 1, current Deputy Commissioner Jayson Ahern will be Acting Commissioner. Here is a JOC article . What qualities do you want to see in the next Commissioner?

I have had a tablet PC for a long time. It is an aging Toshiba M200 and I am quite happy with it. So happy, in fact, that I would like to replace it with another tablet. I'd even get another Toshiba, but they are making it hard. One of the great benefits of a tablet is that it is an easy way to end up with a dual monitor system. With the tablet closed, screen facing out, in its dock , it looks just like a flat panel display. Plug in another monitor, a keyboard, and a mouse, and you have a dual monitor system. I like keeping Outlook open on the tablet and my current work on the larger monitor. The dock also cleverly lets me pull the computer down to the table without disconnecting from the dock so I can mark up a document with the stylus. As best I can tell, no tablet makers are manufacturing compatible vertical docks anymore. That means I can't do this trick and a new tablet is much less appealing. I saw a picture of an HP upright dock, but it apparently it's not f...

Just a quick note. This may be a sign of change at DHS. This comes from an internal draft letter regarding how DHS manages privacy issues. Among the issues discussed is searches of digital media by Customs and Border Protection (which is unnamed in the letter): Border Searches and Seizures of Stored Digital Information. This is currently a highly visible and sensitive issue. While certain DHS components may have legal authority to conduct border searches, there is a significant difference between looking at paper documents and searching through the volume of digital information that can be carried by travelers. The Privacy Office should have a role in reviewing current policies and practices for searches and seizures of digital information and developing guidelines to integrate privacy protections into these processes. That is exactly the kind of thinking about discretion I like to see. Legal authority to do something does not make it a good idea.

Eurodif is a dumping case .  This is the Customs Law Blog.  Usually, I skip over the dumping cases.  But, this is the U.S. Supreme Court.  So . . . let's get to it. The relevant facts are simple.  The importer "buys" low enriched uranium for money plus unenriched uranium.  The contract styles this as a service agreement by which the uranium is enriched and returned to the buyer.  The dumping laws apply to sales of goods and not to services.  So the issue is ultimately whether the dumping laws apply to this transaction. The Commerce Department, (i.e., the "master of the dumping laws"), says it does.  The way Commerce sees it, the contract is for the sale of LEU.  Part of their reasoning for this is that the foreign enricher holds fungible uranium in inventory from a number of sources including uranium it owns. Further, the enricher has complete control over the process.  The Court of International Trade and the Court of Appeals for the Federal Circuit found that ...

This is a fast developing story.  It seems that the Senate has heard complaints from far and wide about the Buy American provisions put into the stilulus plan passed by the House.  Australia, for example, does not want to be shut out of providing the steel for new bridges and roads.  Canada has pointed out that NAFTA includes a government procurement provision to prevent this kind of thing.  And, of course, there is that pesky WTO Agreement on Government Procurement. So, the Senate has added language stating that the Buy American provision should be applied consistent with our international trade obligations. Here is the amendment as provided to me by my faithful crack staff in DC: (Purpose: To clarify that the Buy American provisions shall be applied in a manner consist with United States obligations under international agreements) On page 430, strike lines 7 through 12 and insert the following: (d) This section shall be applied in a manner consistent with United States obligatio...

The Fish & Wildlife Service has announced the list of countries that have not properly documented their Competent Management and Scientific Authorities under the Convention on the International Traffic in Endangered Species (CITES).  As a result, CITES documentation from these countries will not be accepted. I was somewhat bewildered to note that the Holy See is one such country.  Mainly, I wonder what endangered species might be roaming around what, at least in my mind, is a neighborhood in densely urban Rome.  The pigeon?  The rat? No doubt the Holy See has no such species and, therefore, can justifiably ignore this requirement. But, the whole thing is odd. So, I checked the official web site of the Holy See .  Keep in mind, I have very little practical experience with anything related to the Pope.  So, I was quite surprised to see the Pope's homepage includes a link to " Vatican Secret Archives ."  I have not yet had the opportunity to browse the secrets, but I ho...

I'll get to Eurodif today. Reminder that I'll be speaking at the Georgetown CLE International Trade Update March 5-6. Substantively, the USTR is asking for comments on U.S. participation in a Trans-Pacific Free Trade Agreement .  Are we suffering free-trade agreement fatigue yet?  Is American industry clamoring for a new compliance regime to access trade with our neighbors around the pacific?  This proposed agreement would include: Singapore Chile New Zealand Burei Darussalam Australia Vietnam Peru Note that we currently have agreements with Singapore, Chile, Australia, and Peru.  So basically, this seems to me to say: "Doha is dead.  We are going it alone."  That is not really news.   I do wonder whether the WTO can survive being continually undercut by the rapidly growing number of bilateral and regional trade agreements.  As of January 2005, there were 310 regional trade agreements notified to the WTO pursuant to GATT 1947 Article XXIV .  There have been a number s...