Showing posts from March, 2011

Ford Wins on NAFTA Jurisdiction

Ford Motor Company got a win out of the Court of Appeals for the Federal Circuit yesterday. Here is the opinion.  I am still in Phoenix for ICPA, so I need to be quick about this. Basically, the case involved a 1520(d) post-entry claim. Ford made the claim within the one-year period but did not submit the required NAFTA certificates until after the one year period. The Court of International Trade held that the one-year period was jurisdictional, meaning that no claim could be made in the CIT to challenge Customs denial of the claim. This was based on two prior cases finding that the failure to make a NAFTA claim at the time of entry was not protestable. The CAFC disagreed with the CIT on narrow grounds. Following a recent Supreme Court case, the Federal Circuit stated that the CIT had labeled the failure to submit certificates within the one-year period as "jurisdictional" incorrectly. Rather, the lack of certificates is an element of the claim to be considered by the Co

Export Conviction Upheld

Compliance people all understand that export controls law is almost impossibly complicated. It is hard to image a more complicated set of laws, especially when criminal enforcement is involved. But, is the law so complicated that it is unconstitutionally vague? That is the question the Ninth Circuit Court of Appeals addressed in United States v. Zhi Yong Guo . Just or background, for a criminal law to be enforceable, it must be written in a way that allows people to understand what is illegal and to adjust their behavior accordingly. When the speed limit is set at 55 MPH, we all know what is expected. If, however, the speed limit we written as "Travel as fast as is appropriate given the circumstances described in a chart published in the official regulations and assuming the Governor has not let his executive order expire," would you know how fast to go? The Defendant in this case conspired with others to export FLIR thermal cameras  to China without the required licenses

Protests Basics

Most importers and their customhouse brokers understand that an administrative protest is the vehicle by which importers challenge many (but not all) decision by Customs. Often, protests are treated as routine administrative documents. In a classification case, it is not uncommon to see protests that say "Customs classified the gizmo as X and it should be Y, so please reliquidate." That won't get you very far. A good protest includes a fully developed argument for the correct classification and against the classification Customs applied. This is usually supported by technical drawings, photographs, and legal reasoning based on HTSUS language, court decisions, and rulings. What is not always understood about protests is that they are jurisdictional documents. That means that often the only way to get into the Court of International Trade is to have a valid protest that clearly addresses the question presented to the Court. If a protest is untimely, does not cover the c

See You at ICPA

Anyone headed to Phoenix for the ICPA meeting next week should come by to say hello. I will be hanging around the Barnes, Richardson & Colburn table (booth 16) between sessions. I am also speaking at a Monday session. Looking forward to seeing everyone.

Zune Humor

UPDATED BELOW It's been a long while since I posted anything completely off topic, so bear with me. I'm a Zune guy. Not the fancy HD version and not with functionality built into a Windows Phone. No, I have a first generation, 120 GB, big old Zune. It sounds great, holds more content than I will ever need, and works just fine. I do find that I like the convergence of having content on my phone. My upcoming choice between sticking with a Motorola Droid (which I love) and a Windows Phone is for another day. The thing that people don't appreciate about the choice between MP3 players is the desktop side of things. Every time I have to deal with one of the iTunes accounts in my house, I am reminded how much better the Zune desktop client is than iTunes. For starters, while iTunes is entirely functional in its design, the Zune client has an appealing look to it. But, the main thing is that when I plug in my Zune, it syncs new content, removes played podcasts, and generally

Laptop Search Snags Secrets

This, ladies and gentlemen, is why Customs and Border Protection searches laptops and other digital media. I'm not saying I agree with the current state of the law on this topic. I am particularly worried about maintaining privilege and the very person nature of some of the information on digital devices. But, there is a real law enforcement benefit to being able to do this. The article linked below is an example. Interestingly, the article says Customs got a search warrant to look at the laptop. That was nice, but probably unnecessary. Defense contractor charged with stealing secrets on laptop - Computerworld

Making Headway Under CITES

The WCO is reporting good results from a transregional effort to stem the illegal trade in species protected by the Convention on the International Traffic in Endangered Species. According to the report the effort: resulted in the seizure of more than 22 tonnes and 13 000 pieces of protected wildlife covering over 31 species, including one live monkey (“Macaca sylvanus” species), two dead monkeys (bushmeat of the Macaques species), 295 pieces of ivory (statues, jewellery, chopsticks, etc.), 57 kg of raw ivory, four rhino horns, 4 726 kg of pangolin meat, 323 seahorses, and one leopard skin. Other products detained during the operation and still undergoing further investigation to determine their exact CITES status include: 5 300 kg of shark fins, 12 056 pieces of sea shells, 11 250 kg of sea cucumbers, 1 000 kg of eel intestines, and 50 kg of bushmeat. Link: WCO - Press

Lacey Act Sentencing

Of all the things compliance people need to worry about, the Lacey Act is one of the craziest. Not that it is not an important and valuable law. As originally drafted, it was intended to prevent poaching of wild game and is used to enforce laws against trafficking in endangered species. But, the Lacey Act has been expanded to require that importers of plants and plant-based materials make a declaration of the botanical name of the species involved and that it was harvested and exported legally. This is very tough when the importer is several steps removed from the person who harvested the tree, for example. Consider a car company in Germany that uses lovely rosewood in its interior trim. The importer in the U.S. needs to know that the wood making up the trim was harvested legally. That is way outside the usual visibility of the supply chain. That is just me grousing. In a much more typical case, the Justice Department recently announced the conviction and sentencing of an antiques