Customs Law

UPDATED AGAIN, SEE BOTTOM Chicago is an absolutely great city for bike commuting. I rode 20 miles today and do not think I changed gears once. Take that San Francisco! It was about 65 and sunny when I left my house and I had a tail wind most of the way. Locals should note, Lawrence is a mess between California and Western. I almost fell into a hole in which two guys were working on pipes. For a while, I was behind a middle-aged guy on a beat up Trek in baggy shorts and a RAGBRAI t-shirt. The guy did not appear to be particularly fit, but he was keeping a solid 19-20 MPH pace. That is fast for me. I lost him when I got pinched between a pedestrian with a stroller on the right and a slow moving couple riding side-by-side on the left. So, for being that fast, about my age, and having done the RAGBRAI, I declare him my hero of the day. If it turns out got the shirt second hand, I will retract the accolades. On another front, I finally caved to pressure and created a Facebook page. Here...

NAFTA marking issues are complicated. One problem is that people tend not to focus on the marking regulations. They seem to think that once they have determined whether the item is originating, they are done. Often, the marking is obvious, but sometimes it is not. A recent Customs and Border Protection ruling ( HQ H0129256, Mar. 31, 2009 ) is an example of a case where the marking is not obvious. I'm discussing it here not because the analysis is new or the result is surprising. Rather, it is a good example of how this analysis works. Because NAFTA marking issues are often overlooked, it is what President Obama might call a "teaching moment." The ruling involved the marking of remanufactured Xerox photoreceptor cartridges for laser printers. The remanufactured cartridges were produced in Canada from old cartridges and new replacement parts. Some of the parts were non-Canadian in origin. Customs had issued two previous rulings to Xerox. In this ruling, those wer...

With all due respect to Apple, I'm a Zune guy. I am perfectly happy with the hardware and have to say that I find the software far more friendly than iTunes, particularly when it comes to managing my long list of podcasts. It seems cnet agrees . But, I digress. Customs and Border Protection recently had to wrestle with the classification of an iPod. It summarized the issue as being "What is the principal function of the iPod media player under the HTSUS." This was the question because the competing classifications all describe different aspects of the device. Is it a sound recording or reproducing apparatus of 8519? Or, is it a video recording or reproducing apparatus of 8521? The darkhorse candidate is classification as a monitor in 8528. The important legal consideration here is Note 3 to Section XVI, which says that composite machines are to be classified as if they consist solely of the component that performs the principal function. Apple believed the principal...

Mark Draugh of local blog Windy Pundit did a nice rant about Customs and Border Protection's authority to seize a laptop at the border and mused about what happens if the hard drive is encrypted. In response, I sent an e-mail explaining how that could break bad for the owner of the laptop. A friendly e-mail exchange followed. Mark has now compiled that in a new post , which you may find worth reading. Plus, if you are looking for a Chicagocentric, libertarian leaning take on politics and culture, check out his site.

I have been working on a fascinating off-topic post involving popular music, technology, and quantum physics. Instead of that, you get Guidelines for the Assessment and Cancellation of Claims for Liquidated Damages for Failure to Comply with the Vessel Stow Plan, Container Status Message, and Importer Security Filing Requirements. It is in the Customs Bulletin, see page 29. This is the much anticipated notice in which Customs and Border Protection explains how it will calculate penalty amounts relating to the ISF (formerly known as 10 + 2). Customs initially notes that the penalties related to ISF include: Liquidated damages Do not load orders Denial of carrier preliminary entry permits/special licenses to unlade Any other applicable statutory penalty (meaning 19 USC 1595a penalties) Denial of release It does not make a lot of sense for me to try and summarize the penalties here. Frankly, the Bulletin Notice does a fine job of that. For the importer part of this, a late filing ca...

This is one of those things that only customs geeks, logistics jocks, and entomologists would ever think about: pests in wood packing materials. In any warehouse, you are likely to find wooden pallets and crates. The buyer of whatever came on or in that material rarely cares one whit about the packing material. Unfortunately, the buyer need to worry, especially if they are an importer. Under U.S. law (implementing an international agreement), imported wood packing material must be certified as either heat treated or properly fumigated to kill wood-borne pests. Importing wood packing material that is not properly treated is an importation contrary to law and exposes the importer to liquidated damages. Customs has issued a FAQ on wood packing material enforcement. It is here for your enjoyment.

The International Trade Commission has proposed a remedy in the safeguard case involving tires from China. This case arises under the safeguards provisions of China's WTO accession agreement. The ITC is proposing that the U.S. impose 55% duties in the first year of the remedy, 45% in the second year, and 35% in the third. The Office of the United States Trade Representative has issued a public request for comments on this proposed remedy. Comments are due July 27. The next step (after comments and a public hearing) is for the President to decide on the appropriate remedy. Technically, the President is required to implement a remedy, although it need not be the one recommended by the ITC. There is a loophole. The President can determine that it is not in the public interest to impose a remedy. Under the Bush administration, no safeguard remedies were imposed regarding Chinese imports.

Boy, Customs can't seem to catch a break. This issue about the treatment of assisted opening knives probably struck Customs and Border Protection as another simple ruling revocation of which no one would take note. Turns out, that is not the case. Now, the Senate has stepped in with an amendment to some a Homeland Security appropriations bill. The amendment proposes to modify the Switchblade Knife Act to exempt from it: a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife. You can see the text of the amendment in the Congressional Record here. The amendment was introduced by Senator Hatch along with Senators Coryn and Pryor. Sen. Hatch's comments begin on page S7304 which may or may not be here . Senator Hatch's press release, though, is here . The House needs to deal wit...

Sorry to the grammar geeks for ending the title with a preposition. "From where is my honey," did not seem to work. The US Department of Agriculture is announcing a new rule requiring that honey bearing a USDA grade label or other USDA certification mark also be marked with its country of origin. Failure to properly mark the honey can result in debarment from USDA services relating to inspection and certification . Apparently, the USDA believes most honey is already properly marked. However, the regulatory change was mandated by Congress.

Last I heard, U.S. Customs and Border Protection was trying to impose penalties against Union Pacific for what Customs considered to be lax security relating to trains entering from Mexico. In July, 2008, UP filed a suit trying to avoid the penalty by pointing out that the trains were under CBP control, not UP's. As late as March, 2009, this suit was still working its way through the courts. Here is a press release update from UP. Today, the AP is reporting that Union Pacific is donating an $800,000 rail inspection facility to CBP. Is this related? Is it part of a settlement? It strikes me an an unusual move under the circumstances.

By far, the most widely read and commented upon post in the history of this blog is one in which I fretted about the choice between pannier bags and a messenger bag to tote things to work when I ride my bike. I have often been asked what I decided to do. The answer is that I did nothing for a long time. I continued to depend on my small but very efficient Topeak RX trunk bag and quick release seat post rack. I was certain I did not want to carry anything on my back. I also resisted putting a more permanent rack on my otherwise zen like flat-bar road bike. That left me in a bind and often created circumstances where I could not ride to work because I had too much to carry. I finally caved in and put a rack on my bike. It is, after all, now used mostly for commuting and local errands. With a rack, I was able to move up to a Topeak MTX Trunkbag EXP . So far, it has worked out great. I now have enough room to avoid having to stockpile clothes in the office, I can pack a lunch, an...

UPDATED AT BOTTOM I have been avoiding this issue because I did not think many people would actually care. But, in terms of the popular press (AKA the MSM ), it seems to be the customs-related story of the moment . Knife lovers beware, Customs and Border Protection wants to treat certain pocket knives that open via a spring or other assisted release mechanism as switchblades . That change would effectively ban their importation, although owning or selling them in the U.S. would continue to be legal. These knives differ from actual switchblades . In a switchblade, there is an external button or slide that releases the blade. Release-assisted knives require the user to press on the blade itself, which is then released. Customs first proposed the change in the May 22, Bulletin (see page 5). All of this is based on the Switchblade Knife Act, 15 U.S.C. §§ 1241-45 . For you customs geeks out there, the implementing regs are at 19 C.F.R. § 12.95-12.103. The amount of interest in th...

The Office of the USTR has ask for WTO consultations on Chinese policies limiting the export of various forms of bauxite, coke fluorspar, and other minerals. Bauxite is an important industrial material in that it is the basic form of aluminum ore. Coke is a coal-derived fuel that is useful, among other things, in the smelting of iron. Fluorspar (or fluorite) is used as flux to lower the melting point of materials used in the production of iron. Do you see the pattern? It seems evident that if a major source of these important industrial materials limits their export, there will be trade distorting effects. Higher demand, higher price. Plus to the extent these are strategic materials needed for infrastructure and defense, it seems other countries might have an interest in a ready supply. Given those factors, it's easy enough to understand the request for consultation. What remains to be seen is whether the measures China has put in place do, in fact, violate its obligat...

OK, I have bad news for the Twitter side: I like my blog and my blog readers like me. I'm having a hard time balancing both. In the morning, I scour my usual sources to look for items to tweet. In the past, those would have been blog fodder. Well, they need to be again. So, here is a catch up post. After this, I'll do my best to get back to more substantive posts here. Whether that means fewer tweets, we'll have to see. First thing, according to testimony at a House Committee on Small Business, fraud and lax enforcement of laws relating to textile imports and preference programs is harming U.S. producers. I have no serious reason to doubt this, but I do wonder about what level of diligence can reasonably be expected of importers. I think importers need to spend some time thinking about their purchase order terms and conditions. I'd be looking for enforceable indemnity clauses for civil penalties and associated costs. I'd also try and negotiate a contra...

Here are some things I need to get off my desk before they are too old to be of use to you. On June 29, the CPSC published a Federal Register Notice proposing a rule to implement the requirements for consumer registration of durable infant or toddler products. Typically, I do not think of CPSC issues as "customs law," but Customs and Border Protection will be involved in enforcement relating to imports, so we all need to have our eyes open for these issues. Some of the requirements include: Postage paid consumer registration cards in each product and internet registration option Manufacturer database of registered consumers and their products Manufacturer name and contact info permanently on the product in English, legibly, and conspicuous (sound familiar?) Tracking labels to show manufacturer or private labeler, location and date of production, manufacturing lot Comments are due September 14, 2009 Also on the CPSC front, the Commission voted for a two-year stay of enforce...