Customs Law

For the past several years, I have been privileged to speak at the American Petroleum Institute's annual meeting devoted to customs, drawback, and trade issues. I give an overview of legal developments from the prior year. Often, I am stretching to find petroleum-related issues. Here is the subject of my first slide for next year (assuming I am invited back and no one else covers this). In BP Oil Supply Co. v. United States , the Court of International Trade had to determine whether BP had proven that it is entitled to drawback where it imported almost 42 million barrels of crude from various sources and exported an equal quantity of Alaskan North Slope crude. BP sought to establish that the ANS was a legally permitted substitute based solely on the API ratings. Drawback is a refund of 99% of customs duties paid on import when the same quantity of qualifying product is exported. Because it is a statutory privilege and not a right, drawback claimants must satisfy all of the requ...

So says U.S. Customs and Border Protection: CSMS #14-000236 Title: Marking Requirements for Ukraine Date: 4/23/2014 5:22:25 PM To: Automated Broker Interface In accordance with 19 United States Code (USC) 1304, every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article. Growth, production, or manufacture of a good in Crimea is growth, production, or manufacture of a good in Ukraine. Goods which are the growth, product, or manufacture of Crimea and other areas of Ukraine should be marked as "Product of Ukraine" or "Made in Ukraine". If the container of the imported good is marked, it may be marked, "Contents made in Ukraine" or words similar ...

I have lots of friends and colleagues who are what I sometimes call "regular lawyers." These smart men and women work in fields like personal injury, labor and employment, corporate transactions, criminal defense, and family law. Good for them. They have interesting work that often helps to solve real problems that impact real people or companies. But, they never get to decide whether a dog toy might also be entertaining for humans. That's what I do. This is not to say that customs work does not solve real problems for real companies and individuals. We recently helped an individual mitigate the seizure of currency he failed to declare when entering the United States. A couple years back, I helped a U.S. Army Reservist change the rules that prevented him from sitting for the customs broker license exam. More generally, I help companies avoid and solve problems relating to legal compliance in their supply chain and I am more than happy to do that. But, a good classificat...

If you have not been following the International Custom Products, Inc. v. United States saga, you are missing out on quite the show. Of course, it is only a show if you are watching from a disinterested position. To the parties, this is unusually high-stakes litigation at the Court of International Trade. There have been a number of ICP cases covered in this blog. The most relevant prior decision for this post is here . Now, the Court of Appeals for the Federal Circuit has weighed in  and affirmed the decision of the Court of International Trade. Due to my long discourse on conflict minerals , I will keep this short. Customs and Border Protection is bound by its interpretative rulings. Once a ruling issues, if Customs wants to act inconsistent with that ruling, it needs to follow the correct process. That process includes providing public notice of the change in policy, accepting comments from the public, and providing 60 days after final publication before the decision is ...

The U.S. Court of Appeals for the District of Colombia, which hears many issues involving administrative law and government action, has overturned part of the SEC rule requiring companies to report on their web sites that their products are not free of certain minerals from the Democratic Republic of Congo and surrounding countries. The case is National Association of Manufacturers v. Securities and Exchange Commission . Before we get to the legal issues, the background provided by the Court is relevant to what is at issue. The Democratic Republic of Congo ("DRC") is an unimaginably hellish place. It has seen 15 years of war and starvation coupled with widespread human rights violations including the use of rape as a weapon. Much of that activity is undertaken by armed militias financed by the sale of gold, tantalum, tin, and tungsten extracted by primitive, unregulated mining operations in Congo. After passing through many hands, these minerals end up in products sold to c...

It is unusual to hear about a discovery dispute in a tariff classification case at the Court of International Trade. The one at the center of FDK America, Inc. v United States is, even as discovery disputes go, a strange one. The underlying case has to do with the classification of optical isolators, whatever those are. Apparently, at some time prior to this case, Customs ruled on the classification of similar products for Nortel, a company that is not involved in this litigation and is currently in joint U.S.-Canadian bankruptcy proceedings. One thing you need to know is that prior to presenting a case to the Court for resolution, the parties engage in discovery. Discovery is the process of requesting and reviewing information from the other side or from non-parties to help support your case, refute the other side's case, etc. The scope of what can be discovered is very wide and includes anything that might eventually lead to something that is both relevant and admissible. Bu...