Showing posts from October, 2010

Dirty Deems Done Dirt Cheap

This case is very strange . It is also one of those interesting cases that involves the intersection of customs and trade law. Specifically, it involves Customs and Border Protection's treatment of entries subject to an antidumping duty order. As it happens, that treatment was wrong. By way of background, the salient facts are that Alden Leeds was the importer of chemicals that were subject to an antidumping duty investigation. At the time of entry, the importer was required to make a cash deposit of almost 25%. Because the producer requested an administrative review of the deposit rate, Commerce instructed Customs to suspend liquidation of the entries. The review subsequently found an assessment rate of about 4%. That should have made for a hefty refund to Alden. Unfortunately, it did not. Rather than withhold liquidation, Customs affirmatively posted an official bulletin notice stating that the entries had liquidated by operation of law (i.e., they were "deemed liquidate

Hello Sydney

By request, I am posting this by request, something I am happy to do. If you see customs-related news items, always feel free to forward them to me at It seems that the Australian government is hoping that travelers entering the country know pornography when they see it and report it when they are carrying it. This has caused a bit of a dust up down under because not all pornography is illegal to possess in Australia and not all is banned from importation. However, the two sets apparently do not coincide exactly. According to Australian Customs and Border Protection, travelers should just disclose what they have and let Customs sort it out. I am not sure on the law in Australia concerning border searches or self incrimination (feel free to comment if you are). Either way, it certainly seems like a bit of a stretch to assume that a traveler will arrive at the Customs desk Kingsford-Smith and open his or her bag of porn for the inspector to review. Maybe Aust

Are Excises Taxes Protestable?

When Customs collects a tax for another agency, is it making a protestable decision? That is an important question. If the answer is yes, then the U.S. Court of International Trade has subject matter jurisdiction over the denied protest. If the answer is no, the importer has to look elsewhere for relief. That is also the question presented in Shah Brothers, Inc. v. United States , which involves entries of " gutkha ." Gutkha is a tobacco preparation containing betel nuts and various aromatic agents.Apparently, gutkha is a smokeless tobacco product and is, therefore, subject to excise tax as well as import duties. Smokeless tobacco comes in two varieties: chewing tobacco and snuff. The problem for the plaintiff is that the excise tax on snuff is higher than the excise tax on chaw  and the Alcohol and Tobacco Tax and Trade Bureau (the "TTB") concluded that this product is snuff. Customs, on the other hand, eventually agreed with the importer on the classification of

Filer Code Safe for Now

Customs and Border Protection assigns licensed customhouse brokers unique filer codes. These codes allow the broker to have electronic access to Customs.  The filer code, therefore, effectively permits the broker do business in a modern commercial environment. Absent an active filer code, the broker may as well have to operate using carrier pigeons and smoke signals. Consequently, when CBP threatened to deactivate its filer code, Lizarraga Customs Broker went on the offensive. The issue reached the Court of International Trade. The procedural status of the case is a little tangled. It appears that plaintiff wanted an injunction to prevent CBP from deactivating its filer code. While that request was pending, the parties submitted their complaint and answer. Eventually, the United States government filed a so-called "Confession of Judgment" in favor of Lizarraga. According to the government, this should have resolved the case because the US has agreed not to suspend the file

Gilda Wins

We have been following along with Gilda Industries, Inc. v. United States since the early days of this blog ( here and here ). Remember back when I would also blog about spiders in my basement and and Spore creatures ? I kind of miss those days. I know my extended family does too. Gilda involves 100% retaliatory duties assessed on Gilda's imported toasted bread products. The duties were in response to a European policy to block imports of U.S. beef after the WTO found that the ban was not supported by scientific evidence. The procedure for continuing the retaliation required that a representative of the  benefiting U.S. industry request the continuation of the retaliation. In 2007, no one from the beef industry made such a request. As a result, Gilda argues that the retaliatory duties expired. The Court of International Trade agreed and ordered that the duties collected after the 2007 expiration be refunded with interest. This is the decision on appeal to the Court of Appeals

Cert. Denied in Totes - Judicial Conference

I have been remiss again, but not for wont of effort. I have just been on the road while also sick. That is a bad combination. In terms of follow-up information, you should know that on October 4, the Supreme Court denied certiorari in Totes-Isotone r. That is the case challenging the constitutionality of gender- and age-specific tariff rates. It remains to be seen whether that is the end of the issue. The critical legal determination to date has been that the distinctions drawn in the tariff schedule are not facially discriminatory. As a result, a plaintiff needs to prove not just the an improper distinction is drawn but also that it was done for an inappropriate purpose. That makes the case much more difficult to prove. I suspect there were sighs of relief throughout Customs and Border Protection. The Court of International Trade has issued three customs-related decisions that I will summarize as soon as possible. For those of you who might not be members of the Customs and In