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Showing posts from October, 2009

Miami 2009 & DiCarlo Lecture

I know this is short notice, but if anyone is going to be in Miami tomorrow for the ABA Section of International Law Fall Meeting, please say hello to me. I will be helping to moderate a panel on transfer price for customs and income tax Thursday at 8:30 AM. Apparently, the ABA felt the driest possible topic should start off the morning. Friday there is a tour of MIA Customs and Border Protection cargo facility. I am not sure if I will make that because I have a flight to catch Friday evening. While I am thinking of it, if you are in Chicago next week, I'll be introducing U.S. Court of International Trade Judge Timothy Stanceu at the annual DiCarlo lecture. This lecture is named in memory of "my judge," Dominick L. DiCarlo who was Chief Judge of the Court of International Trade. Judge DiCarlo had three successive John Marshall grads as law clerks. Judge Stanceu is, I think, the eight judge to speak in the series. Information is available here .

Page Slap

It's been a pretty busy couple of weeks and will continue to be. Earlier this week, I participated as co-counsel for the plaintiff in a mock trial sponsored by the Customs and International Trade Bar Association . The trial went reasonably well, although I was surprised by a document I created on which I failed to check the math. Note to self: Don't do that in real life. There have been a couple developments recently that deserve some blog coverage: Here is video of testimony on the Customs Reauthorization bill. Customs and Border Protection has published a Federal Register Notice regarding the use of sampling methodologies and offsetting overpayments in audits. This is interesting because statistical sampling in audits and prior disclosure perfections has been somewhat ad hoc. The issue has generally been whether the importer and the auditor could come to an agreement on a reasonable means of calculating the duties owed. Both sides generally understand that it is o

Preference Criterion What?

Recently, I answered a question posted on the ICPA listserv. The question was interesting enough that I will review the substance of it here. Most people generally think of the NAFTA preferences in terms of criteria A through D. These cover the vast majority of compliance issues with B being the leader. The ICPA question was about preference criterion E. What, you ask? Never heard of it. Well, it is of limited use, but if you are in the IT sector, it is a terrific rule. Preference E states simply that certain goods listed in NAFTA Annex 308.1 are considered originating simply by virtue of having been imported duty paid into the NAFTA region. [If you struggle with tariff shifts and RVCs, pick your jaw up off the ground.] What this means is that a 100% Japanese content computer imported duty paid into Mexico, for example, is originating when it is later transferred to the United States or Canada. In other words, for the IT sector, NAFTA sets up a mini customs union. That

Can the CIT Review What Customs Reviews?

This is a tricky question that was answered in Funai Electric Co. v. United States . The underlying issue has to do with a determination by the International Trade Commission that certain imported digital televisions infringed a U.S. patent. As a result, the ITC issued an exclusion order requiring Customs and Border Protection to prohibit entry of the infringing televisions. This all happens under 19 U.S.C. sec. 1337 in what is called a 337 case. Following the exclusion order, some of the infringers developed a work-around to produce what they believed to be non-infringing televisions. They then went to Customs to get a ruling confirming the admissibility of the new televisions. Customs provided the ruling . Seeing the value of their exclusion order evaporate, the patent holder went to the Court of International Trade seeking a declaratory judgment or other relief holding that Customs has no authority to determine the scope of an ITC exclusion order. Rather, that task should f

My Service To You

I read Rodrogue, so you don't have to. United States v. Rodrogue involves a technical issue in which the United States attempted to cure defective service on the defendant. Service is the means by which a defendant is notified of a claim against it. If service is not made properly, the Court does not have jurisdiction. In this case, the US sought leave of the Court to extend the 120-day service period by an additional 90 days and to permit service by public notice. Public notice service is based on the legal fiction that people actually read the legal notices buried in the back of the newspaper. The gist of the facts is that Customs repeatedly tried to serve the defendant's at the wrong addresses. One defendant was finally served, but after the statute of limitations and the 120-day period for service had run. The other defendant was never served. The upshot is that the United States needed to show good cause for its failure to serve. If it does show good cause, the C

Update: News of the Weird

Back in August on 2008, I blogged the story of a customs broker who was being investigated after having gone to the Federal Reserve to turn in some battered currency for clean new money. According to the original story , the money was found in Mexico. Yesterday, the Washington Post ran an update on the story. The money involved totaled some $6.4 million and was found buried at a warehouse in Mexico. As it turns out, and contrary to my first post, the broker involved appears to have crossed all the t's and dotted all the i's to properly bring the currency into the U.S. Still, there is something fishy going on as there was a settlement payment made to the U.S. Assuming this were truly just found money, it's not clear to me that there would be any need to settle anything. So, is there something more to this? Even with that tail hanging just a bit, it's nice to have an end to the mystery.

Epilogue: The Wrath of Kahrs

We are in the final stretch. I hope this is the last post on this case. Kahrs's ( grammar note : that looks awful) final argument has to do with 19 USC 1625 and the rule that once Customs has issued an interpretive ruling or settled on a uniform treatment of merchandise, it has to respect that practice. To change practice, Customs is required to go through a public notice and comment process. Kahrs takes the position that prior denied rulings, multiple intensive reviews, and hundreds of liquidations count as interpretive rulings, which cannot be undone via a simple CF-29 Notice of Action. Initially, the Court held that denied protests are not interpretive decisions within the meaning of the statute. The law does provide that "protest review decisions" are interpretive rulings. Simple denied protests, however, are outside the scope of 1625. Ditto the liquidation and intensive examinations. To make things worse for Kahrs, the Court noted that is 2001, Customs did