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Showing posts from September, 2009

On the Apostrophe

UPDATED BELOW: Garner's The Elements of Legal Style, Rule 2.6 (Oxford, 1991)(emphasis in original) states the following: 2.6 Form Singular Possessives by Adding 's to the Singular Form of the Noun The rules holds true regardless of how the word ends: thus, witness's, Jones's, Congress's, and testatrix's . There are three exceptions to the rule. First, the word its is possessive, it's being the contraction for it is. Second, your and hers , which are absolute possessives, take no apostrophe. Third, biblical and classical names that end with a -zes , or -eez sound take only the apostrophe. Thus, Jesus' Moses' Aristophanes' Socrates' If the possessive form seems awkward to you, rephrase: the laws of Moses instead of Moses' laws , the action of Congress or the congressional action instead of Congress's action . Given the treatment of Customs as a singular entity, I take it from Garner (my go-to grammar guy) that the CAFC

Kahrs III: What Have I Done Wrong?

Here I sit, painfully aware of my promise to my loyal readers to digest and summarize this Court of International Trade decision in a way that is both accurate and entertaining (well, entertaining to customs lawyers). The opinion is a dry 88 pages long. My task is daunting. I feel like I am standing at the base of some reasonably tall mountain with too little food and without an experienced Sherpa. I wonder whether there is any meaningful principle of customs law to be taken from this case. In other words, why am I bothering? [Pause for much time spent staring into space waiting for some sort of sign from heaven telling me what to do. None arrives, I continue reading.] Kahrs imports wood flooring which it classified in 4418 as builders' joinery. Customs and Border Protection classified the merchandise in 4412 as plywood. Kahrs filed suit and asserted as its causes of action: Improper revocation of prior rulings via a CF-29 Acts in opposition to an established and uniform

And Now, A Word from the CAFC

Before I get to Kahrs III: The Search for Refunds, I want to take a look at Faus Group, Inc. v. U.S., which the Federal Circuit issued yesterday. There are a number of reasons for that. First, Faus is short. Second, it's brevity seems to raise something of an issue. Third, it relates to some of the same legal questions. Fourth, it raises a truly important grammar question. Faus involved the classification of laminated flooring panels as either fiberboard under heading 4411 or as "builders' joinery" under 4418. The Court of International Trade had upheld Customs and Border Protection's classification in 4411. The merchandise is pre-cut, tongue-and-grooved flooring consisting of a fiberboard coated with a photographic image to simulate natural wood. The pieces are not structural and are designed to be installed on a secure subfloor. Within heading 4418, Faus asserted that the proper classification was in 4418.30.00 as parquet panels or in 4418.90.40 as oth

Kahrs II: Revenge of the Import Specialst

Returning now to the saga of Kahrs International , we have some more evidence questions to resolve. Before that, and with all due respect to the guy who complained about my Audi post , I say, "Hey Kahrs, nice floors you have there." I notice only because my kitchen floor is a wreck. In this second published opinion , the government moved for summary judgment, in part, on the basis of two declarations from Customs personnel. Kahrs moved to strike portions of those statements. Motions like this are decided on the basis of the judge's sound exercise of discretion and can only be reversed if the judge abused that discretion. In other words, the judge has pretty wide latitude here. The motion to strike comes down to an ages-old question in customs litigation: Are Customs Import Specialists "experts" for purposes of giving testimony in court. A run of the mill witness is generally only allowed to testify as to facts. "The light was green." "It

New Commissioner Nominated

President Obama has finally nominated Alan Bersin to serve at Commissioner of Customs and Border Protection. Here is his official bio: Alan Bersin was appointed by Homeland Security Secretary Napolitano in April, 2009 as Assistant Secretary for International Affairs and Special Representative for Border Affairs in the Department of Homeland Security (DHS). In that capacity, he serves as the Secretary's lead representative on Border Affairs and Mexico, for developing DHS strategy regarding security, immigration, narcotics, and trade matters affecting Mexico and for coordinating the Secretary's security initiatives on the nation's borders. Prior to his current service, Bersin served as Chairman of the San Diego County Regional Airport Authority. Previously, Mr. Bersin served as California’s Secretary of Education between July 2005 and December 2006 in the Administration of Governor Arnold Schwarzenegger. Between 1998 and 2005, he served as Superintendent of Public Educatio

Deem It All!

This post is really background to the next couple posts. The Court of International Trade is not known for disputes over discovery or the admissibility of evidence. But, if you want to see a customs case involving hard-fought battles over evidence, look no further than Kahrs International v. U.S. The first opinion in this matter involved a highly unusual motion by the United States to have the Court withdraw deemed admissions. This week, two more opinions came out. Let's deal with them in order. The underlying dispute has to do with the treatment of wood veneer flooring strips. The defendant failed to timely respond to several requests to admit from the plaintiff. A request to admit is a discovery tool through which one side simply asks the other to admit some fact as a means of taking it off the table as an issue. If the other side does not respond, the fact is deemed to have been admitted. The Court, however, has discretion to relieve the party of it's deemed admissions

Dear Audi, Why?

As a far too occasional bike commuter, I feel I should be offended by this ad for the Audi diesel. Audi seems intent on lumping bike commuters, strap hangers, and Segway owners into a larger category of nerds and losers. Of course, only the kick-scooter commuters belong there. Oddly, I'm not offended. Instead, I'm thinking the S5 is pretty hot looking . Damn you Audi!

FCPA Goes Hollywood

Here is a little something for those of you out there trying to convince management that compliance is worthwhile. Some folks in Hollywood were apparently not paying attention to the Foreign Corrupt Practices Act . It seems they decided that the best way to get the contract to run the Bangkok Film Festival was to bride the relevant governmental official to the tune of $1.8 million. Under the FCPA, with very limited exceptions, it is illegal for a U.S. person to make a corrupt bribe a foreign governmental official to secure or retain business. There are very limited exceptions for what are often called "grease payments." A grease payment is made to expedite a ministerial task that is certainly going to happen. The difference has to do with whether the bribe is to get someone to exercise discretion in your favor as opposed to just do their job. Still, if your theory is that you are making grease payments so it is all good, you are treading on some very thin legal ice.

Residue and Tires

On the regulatory front, Customs and Border Protection is delaying enforcement of the rule requiring the entry of previously considered empty containers if there is residue in the container. For now, they can be treated as empty. The implementation of this change is delayed until further notice. After this comes into force, the residual goods will have to be entered. Quantities may be estimated, but if a more accurate quantity is later determined, the entry should be updated. In case you spent the past 48 hours under a rock or in a cave, President Obama has decided to levy new duties on tires for passenger cars and light trucks from China. This is a Section 421 case based upon the theory that there has been a surge in imports and the U.S. industry needs some breathing room to adjust. The duties will begin at 35%, go to 30% in the second year, and then to 25%. This is the first time an industry has successfully sought relief from the Obama administration. Here is the USTR press

Classification Case

UPDATED TO FIX THE LINK: Generally, I worry about any court opinion that requires its own table of contents, but in my effort to fill the gaps in my recent blogging, I will jump into ENI Technologies v. United States . The merchandise involved is RF generators that take AC electricity, convert it to DC and then produce electrical current at specific frequencies and power. The frequencies are high enough to be in the range of radio energy, but the output is just electrical current at a certain wattage. In this case, the wattage is in the order of thousands of watts. The output is used to create plasma useful in the production of semiconductors, to which it is integral. Although there are other applications, semiconductor production appears to be the primary use. Customs classified the merchandise as static converters. The importer had a number of alternative classifications starting with parts of plasma processing systems. This required an analysis of Section XVI, Note 2, which contr

Starting to Catch Up

I have not been able to devote much time to detailed analysis lately. I hope those of you able to access it have been keeping up with developments via www.twitter.com/customslawblog . For what it's worth, I'll start the process of catching up here. On September 2, the President published a notice of changes to the NAFTA Rules of Origin and to the U.S. Israel FTA. That proclamation is here . The Lacey Act, you will recall, requires importers of wood and plant materials to make a declaration stating the genus and species of the plant material and that it was harvested and exported legally. There are certain exceptions including for common cultivars. APHIS has amended its schedule for the implementation of the Lacey Act. Under the change, the merchandise covered by Phase III (due to commend October 1, 2009) has been reduced. Phase IV (April 1, 2010) has been substantially revised. An important change is that recycled and reused materials (for example, particleboard and

I Have A Blog?

Dear Readers: Yes, it's true, I have a blog and the self-imposed responsibility to keeping my readers informed of important developments relating to customs and international trade law and to pass on various amusing anecdotes. The problem is that I also have a job. At the moment, I have two jobs because classes have started and I am teaching trade remedies at JMLS again. That takes some time away from blogging. All of that is by way of excuse and to let you know that I have a stack of cases to review and to post. I'll try and do them shortly. In the mean time, I sincerely hope you all have an enjoyable long weekend. If you are not in America (where Monday is Labor Day), go ahead and take Monday off anyway. It's the end of summer and we can all use a free day. If you are in Australia or another southern hemisphere spot, I know it is not the end of summer. You people are just stuck. Go to work on Monday. Larry