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Showing posts from May, 2010

Dinos Among Us

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In a weird example of synchronicity , while walking to work today I was listening to Brian Dunning's Skeptoid podcast discussion of relic dinosaurs such as the Ropen of New Guinea and Mokele-Mbembe of Congo. As I crossed Michigan Avenue, I found this: Unfortunately, rather than being a living T-Rex, it is a promotion for the Field Museum of Natural History, which is celebrating the anniversary of its acquisition of Sue, the T-Rex skeleton. Sue, for the record, is 65 million years old.

For My Friends at Costco

For those of you not following my increasingly rare tweets (www.twitter.com/customslawblog), I should note that one of my favorite issues is headed to the Supreme Court. That issue is whether it is permissible to purchase branded merchandise abroad and import it without the consent (in this case) of the copyright holder. More commonly, these cases revolve around trademarks and whether the product is materially different from the authorized U.S. product. This, however, is a copyright case. In either case, what we are talking about here is called parallel importation or the gray market. This case will clarify a gap left in the prior Supreme Court decision on the topic, which was Quality King v. L'Anza . In that case, a U.S. company sold hair-care products to a distributor in the U.K., who sold them to someone in Malta (of all places). Someone found the goods there at a bargain price and re-imported them to the U.S. where they were sold at discount shops. L'Anza, seeking to prot

On Your Left . . .

you will find my lungs. On your right is my heart. The reason for that bit of bike and charnel house humor is brought to you by the fact that I rode my bike to work for the first time yesterday. I am still feeling it today. Still, it was a nice sunny day. Pretty cold at the start of the ride and a bit windy on the way home, but overall, a pleasant commute. I did cheat a bit by driving half way, but its the thought that counts, not my ironic carbon footprint . While I am linking to reruns from this blog, I wish you all a happy Tariff of Abominations Day !

The Straw that Broke the Camelbak

For my buddy Lowell, I am tagging this entry as "Cycling." The Court of International Trade has ruled that a hydration system worn on the back while engaged in physical activity such as cycling is, for all intents and purposes, a backpack. Let's see how it got there. The merchandise consisted of Camelbak-brand hydration systems. These clever products are liquid reservoirs and a delivery tube mounted in a backpack. Here is an example , which may not have been involved in the actual case. The thirsty cyclist or other athlete can sip fluids from the reservoir via the tube and a valve. As you can see, the hydration system also holds cargo, as would an ordinary backpack. The question in Camelbak Products v. United States, was whether for tariff classification purposes the hydration systems are "traveling bags" or "sport bags," on the one hand, or are "insulated food or beverage bags" on the other hand. Both possible classifications are in HTSU

CIT Decisions

The Court of International Trade issued a couple decisions on May 6 that are worthy of note on technical grounds. In Shinyei Corp. of America, the plaintiff filed protests to challenge liquidation instructions relating to the assessment of antidumping duties. Unfortunately, that is a challenge to a decision of the U.S. Department of Commerce, not Customs and Border Protection. As a result, the customs protest was invalid and the subsequent case not properly before the Court on the basis of 28 USC 1581(a). The Court struck the complaint and gave Shinyei 30 days in which to amend the complaint, at which time it will likely assert jurisdiction on the basis of 1581(i). The other case is Great American Insurance Co. This case goes to a fundamental requirement for getting into Court to challenge a liquidation: you need to pay the duties before you ask for them back. Under 28 USC 2637(a), a civil action contesting the denial of a protest may be brought in the Court of International Trade

No Deemed Protest Denial

What happens if Customs and Border Protection sits on your protest for two years or more? There has been a notion among importers that the protest is automatically denied and can be challenged in Court. I think the basis for this is three fold. First, both the statute and the regulation are clear that Customs "shall" act on the protest within two years. See 19 USC sec. 1515(a) and 19 CFR sec. 174.21(a). Second, in cases where the importer requests accelerated disposition of the protest, a failure to act is deemed to be a denial. And third, there just should be some sort of consequence for Customs' failure to act. In Hitachi Home Electronics (America), Inc. v. United States , the Court of International Trade settles the question. Basically, it comes down to the fact that neither the statute nor the regulation imposes any consequence for Customs' failure to meet the two-year deadline. Absent some consequence, the law treats the apparent deadline as a directory guidelin