Customs Law

It's been a while since I blogged about a simple drug smuggling scheme. Generally, I am happy to report, I work with commercial importers. Only rarely have I had to call in a criminal lawyer for help. Still, this is a border issue, and it counts as amusing, at least to me. Various news outlets are reporting that Mexican drug smugglers had been attempting to use a catapult to hurl marijuana across the border. Clearly, this is the work of a geek smuggler (and I mean that in a positive sense). But, looking at the poor video, it looks like the gizmo was actually a trebuchet, which is much more elegant than a simple catapult. A trebuchet is a "siege engine" used until the 13th Century to toss heavy, burning, or infected things at one's opposition. Apparently, a trebuchet is far more accurate than a catapult. The difference between the two being, at least as I understand it, that the trebuchet has a loose rope-link sling rather than a fixed basket for the projectile. Thi...

The Court of International Trade is, like all federal courts, a court of special and limited jurisdiction--just more so. If a case does not fall within the scope of 28 USC 1581-84, the CIT has no power to hear it. Some of the provisions of section 1581 have been effectively dormant. Until yesterday, that was true of 1581(e), which provides: The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review any final determination of the Secretary of the Treasury under section 305(b)(1) of the Trade Agreements Act of 1979. A section 305(b)(1) determination is a determination by Customs and Border Protection that an article is or would be a product of a foreign country or instrumentality for purposes of government procurement. What this is all about is the application of both the Buy American Act and the Trade Agreements Act of 1979. There is a lot of history here, and the opinion in Xerox Corp v. United States does a good job of summarizin...

So far, I have not done very well at following my resolution to post more often in 2011. So, I will respond to a specific request for a post. This request comes from someone who has quite reasonably decided not to issue meaningless NAFTA certificates in the ordinary course. What is a meaningless NAFTA certificate? One that provides little or no duty savings to the importer. Generally, that means where the product involved is unconditionally duty free into the other NAFTA countries. If it is already duty-free, the added benefits of a NAFTA claim are either zero or small. When compared to the administrative cost of chasing supplier certificates of origin, record keeping, and responding to possible verifications, it is perfectly rational for a producer to decide not to provide certificates for duty-free products. Typically, producers who do that hit two objections. The first is easily dismissed. It is not true that originating goods must be the subject of a NAFTA CO to enter any o...

Way back in the early days of this blog, when I was funny, I covered the U.S. ban on certain types of caviar . The Fish & Wildlife Service would like you all to know that the ban applies, in certain circumstances, to cruise ships and international passenger aircraft. Basically, they can't sell the affected types of caviar because that constitutes a commercial import or export in violation of the Convention on the International Traffic in Endangered Species or the U.S. Endangered Species Act. Those carriers can serve caviar to passengers but are not permitted more than 125g per passenger. Plus, it appears from the FWS document , that the caviar must all be consumed on board. So, for all you sophisticates out there, if you are jonesing for some caviar on your next international flight, don't expect more than 125g and don't expect to be able to buy an extra pot in flight. Personally, I'm not a big fan. UPDATE: Speaking of FWS, is that 55 live turtles in your luggag...

Roche Vitamins, Inc. v. United States is a Court of International Trade opinion on the classification of a beta-carotene product. The tricky thing about beta-carotene is that is can be used as a dietary supplement (as a precursor for vitamin A) or a a colorant that produces a lovely carrot color. This is a good case to read if you are interested in how the Court interprets tariff provisions requiring classification based upon use. Specifically, the Court held that the phrase "coloring matter" in subheading 3204.19 means that the "matter" must be principally used as coloring. As a result, the Court needs a lot of information to resolve the case. First, the court must determine the "class or kind" of product that encompasses the merchandise. Then, it must consider six factors including physical characteristics, expectations of purchasers, and channels of trade to determine whether the beta-carotene of that class or kind is principally used as coloring. ...

The regulations regarding the export of encryption software are among the most convoluted in the trade world. The problem is not so much that the regulations are poorly written. The problem is that the technology is complicated and the average trade person does not necessarily have the expertise needed to interpret the regulations. That situation is slowly easing as the Obama administration simplifies various aspects of the export laws and regulations. For example, in this Federal Register Notice , the Bureau of Industry and Security is announcing  that certain mass market, publicly available encryption software in object code with symmetric key length greater than 64 bits is no longer subject to EAR. While they were at it, BIS also announced that "publicly available" encryption object code classified under Export Control Classification Number (ECCN) 5D002 on the Commerce Control List when the corresponding source code meets the criteria specifi...

Here is a link to a Department of Justice press release noting the guilty plea of two Miami men charged with violations of the Lacey Act. Specifically, they smuggled pigeon eggs into the US from Cuba. Note that this raises all kinds of other Cuba-embargo-related questions, but that is not the substance of the charge. One of the defendants runs (or maybe now it is correct to say "ran") a pet store specializing in racing and homing pigeons.

As you probably know, Congress could not get its act together to pass an extension of GSP before the end of 2010. That means that merchandise that might otherwise have been duty-free is now forced to entry the U.S. dutiable. This is not an unusual circumstance. So much so that Customs and Border Protection has a means of dealing with this, which works on the assumption that GSP is not dead and will be reauthorized. In the meantime, importers should continue to use the GSP SPI on entries. That effectively flags entries so that when Congress renews GSP, the entries can be liquidated with GSP benefits. But, until that happens, duty deposits must be made at the applicable MFN rate. AGOA, on the other hand, has not expired and can continue to be used. And, to round out the alphabet soup of preference programs, ATPDEA was granted a short extension through February 12, 2011 for Columbia and Ecuador, but not for Peru (which should not be harmed due to the trade agreement with the US).