Customs Law

Leo M. Gordon, presently Clerk of the U.S. Court of International Trade, has been nominated to be a Judge of that very Court. He will likely fill the slot vacated by Judge Aquilino who has taken Senior Status. But, that is not the main point. The main point is that for what is very likely the last time in his life, Mr. Gordon is listed next to and ahead of Judge Samuel Alito on this Senate list of nominees.

It has never been clear to anyone why in the process of making the Department of Homeland Security, half of Customs was carved off into another agency. Previously, we had the U.S. Customs Service in the Department of Treasury. Customs had compliance folks, entry personnel, and investigative agents (known as "Special Agents"). When Customs moved to Homeland Security, it was merged together with Immigration and Naturalization folks and some Agriculture Inspectors. The stated goal was to produce "one face at the border." This required cross training Customs Inspectors for agriculture issues, Immigration inspectors for customs issues, etc. There is a certain undeniable logic in this. But, the Special Agents (and their Immigration equivalents) were moved into a wholly different bureau called Immigration and Customs Enforcement. This has not worked all that smoothly. There is growing pressure in Washington to merge the agencies. That would make sense. Special Agents are t...

Sadly, Underneath Their Robes is no more. This was a great blog that focused on the judges of the federal judiciary the way People Magazine focuses on Jennifer Aniston and Angelina Jolie . The blogger, who went by the nom de blog of "Article III Groupie" and was apparently female, turns out to have been a male Assistant U.S. Attorney from New Jersey. According to this Law.com article, he was frustrated that he received no credit for the great success of his blog. He was voluntarily outed in a New Yorker column by Jeffrey Toobin. Now, following a discussion with his boss, the site is locked down. Too bad we won't be able to follow the Alito confirmation process through UTR.

Prospective client 1: Brooke Burke . According to this New York Times article , Ms. Burke (and other celebrities) have endorsement deals with foreign-based internet gambling sites. These deals are potentially illegal under federal law. Now, I am not a criminal lawyer, but there is a trade law issue here. In March of 2003, Antigua and Barbuda requested WTO consultations with the US to discuss whether US anti-gambling laws prohibiting on-line gambling through sites operated outside the US violated US commitments under the General Agreement on Trade in Services (GATS). In November of 2004, a WTO panel held that the US had, in fact, violated its commitment to permit free trade in services including gaming. So, it would seem that the US might have an incentive to loosen up these laws and Ms. Burke could keep her gig. Unfortunately for her (and the others including Jesse Ventura and James Woods), the US appealed and won in an April 7, 2005 Appellate Body Report . The report says the US can p...

Today is the 30th anniversary of the wreck of the Edmund Fitzgerald . Those of us who live near the Great Lakes know that they are easily whipped up by storms and can provide treacherous sailing. I have a small sailboat (the one in the picture) on Lake Michigan and, on occasion, I see large ore boats coming and going. They are an impressive sight among the more pedestrian sailboats, fishing boats, and cruisers. Personally, as interesting as a lake passage might be on one of these boats, I have no interest in being somewhere between Milwaukee and Ludington when a storm hits. You can find out everything you ever wanted to know about Great Lakes shipping here . One cool feature on that site is real time ship location reporting. One thing I have never seen in Lake Michigan is a whale. I'll keep looking. Perhaps these folks can help.

President Bush just returned from a summit in South America. While there, he unsuccessfully tried to defribulate the comatose talks to create a Free Trade Area of the Americas . This agreement is sort of the Holy Grail of regional pacts. It would link 34 western hemisphere democracies in a loose trade bloc (think NAFTA writ large, not the EU). Cuba, by the way, is one country on the outside looking in. It turns out this is unlikely to happen. The US and Brazil are at loggerheads over agricultural subsidies and Venezuela is not exactly on good terms with President Bush ( or Pat Robertson ) either. The bigger issue for the FTAA may just be that there is a bigger issue: finishing the Doha Round of WTO talks. That also looks like it need life support. The US and EU have made a proposals over the past month to reduce tariffs but neither side is happy with the other's proposal. The EU, driven by the French, insist the the US proposal cuts subsidies too deeply. Still, the US proposal is n...

OK, I admit this is silly . It is also not a good way to treat a digital camera. And, I know David Pogue of the NY Times already mentioned it in his blog (which people actually read). But, it is oddly compelling.

The bike commuting season is over; at least for me. It is too cold and too dark. I know there is gear to resolve these issues. I am the king of gear. I love gear. I own expensive winter cycling clothes, Neoprene shoe covers, gloves and glove liners. No matter what I wear, my fingertips become painfully cold when it is under 50 degrees outside. As to lights, adding lights to my bike would involve an HID/LED system and I am not up for a $400-$500 accessory just so I can ride at night. My alternative is the basement criterium . I prop my bike up in a trainer not as nice as this one , and then ride for a while. As you might imagine, riding to nowhere in the basement can be painfully boring leaving my mind to wander where it should not. So, if you are similarly afflicted, here are things to do to keep you going for a couple hours: Watch movies involving cycling such as The Bicycle Thief (little actual riding), Quicksilver (crazy messenger riding), Breaking Away (a great movie), The Trip...

The U.S. Fish & Wildlife Service has banned the importation of beluga sturgeon caviar (and meat) originating in the Black Sea basin. This comes as a blow to luxury buyers in the U.S. who have already been suffering with a ban on these products from the Caspian. This move, consistent with the Convention on the International Traffic in Endangered Species , is intended to force the exporting countries to make progress in implementing conservation programs for the endangered fish. Of course, the fact that caviar comes from this fish, might make it less appealing. There is a lovely description of the production process here . It might be more than you want to know that the fish is stunned once by a blow to the head with a wooden club, then stunned again before it is cut open. This ban also covers personal importations with arriving passengers. First, the Concorde is put out of service. Now some beluga caviar is banned. What's next; a tax on polo ponies?

A lot of what Customs has to do is routine and painfully dull. But, it is important. Think about the thousands of passengers and cargo containers that present absolutely no issues whatsoever. Most people tell the truth when entering the country and most importers properly declare their goods. The tricky part is letting the legitimate trade happen while finding and stopping the bad guys. One of the current trade facilitation projects is the Periodic Monthly Statement under the Automated Commercial Environment. The Periodic Monthly Statement (which is still technically a test program) lets participating importers identify entries and pay Customs for them by the 15th business day of the following month. This creates an interest free loan of up to 45 days for importers. It also simplifies recordkeeping and allows importers to create national or port summaries of activity. Until recently, the only way importers could take advantage of the Periodic Monthly Statement was to have an ACE Portal...

There is lot going on in the lead up to the next meeting in the Doha round of trade negotiations. The U.S. is pushing what it calls the Doha Development Agenda which consists of four components: Agricultural market access (with a limited emphasis on the elimination of subsidies) Industrial products market access Services Trade facilitation While trying to promote this agenda of trade liberalization, the U.S. and other developed countries have to balance the different economic needs of the developing world. There are more than a billion people in the world living in poverty. The Doha agenda includes a mandate that developing countries receive "special and differential treatment" to assist them in more fully integrating into the global economy. These countries can opt for more limited liberalization and longer phase-in periods for changes in trade rules. There are lots of competing interests in these talks. The most obvious friction results from the facts that th...

It looks like we might have CAFTA by January 1, 2006. The USTR announced that Nicaragua has approved the agreement. Since I am short on words at the moment, here is the entirety of the USTR statement: Statement of USTR Spokesperson Neena Moorjani Regarding Nicaragua’s Passage of CAFTA-DR 10/11/2005 “We congratulate the Nicaraguan government for passing the Central America-Dominican Republic Free Trade Agreement. “They now join El Salvador , Guatemala , Honduras , the Dominican Republic and the United States in approving the CAFTA-DR. "We have met with representatives of the CAFTA-DR governments recently and we are working towards a target date of January 1, 2006, for implementing this agreement. “This agreement levels the playing field for American workers, farmers and businesses, expands choices for consumers and strengthens democracies with our neighbors.”

Today was the Chicago Marathon in which 40,000 runners competed either to win, make a new personal record, or just finish. I wasn't there; bad knees , and all. I have personally made a significant contribution to the college funds of the children of several orthopedic surgeons and a raft of physical therapists. That is why I now ride a bike rather than run. But, due to a serious downpour, I did not complete the 100-mile ride I had planned for the end of September. Thus, I am feeling envious of the marathoners who finished today. In particular, that means you, P. P is the runner I turned on to Gu when he decided to train for his first marathon. I think that makes me kind of a legal sugar pusher. He finished today at about 4 hours, 34 minutes. For 26.2 miles, that is something to be proud of. For those of you who don't know, Gu is a concentrated carbohydrate gel. When competing in endurance events, Gu comes in very handy to prevent the dreaded and embarrassing bonk . Runners an...

Here is a U.S.-Canada battle worth watching. Research in Motion, the makers of the ubiquitous and, for some, essential Blackberry wireless e-mail and phone devices has been sued for patent infringement. The U.S. patent holder, NTP, sued RIM for infringing patents relating to its software for transmitting e-mail. RIM's main argument is that its servers are located in Ontario (that's Canada, not California ), which is a separate sovereign country where U.S. patent laws are not in effect. The U.S. Court of Appeals for the Federal Circuit, which also hears appeals from the Court of International Trade, was not swayed by the border argument. The most recent opinion is here . The news media now reports that the Federal Circuit has denied RIM's request for en banc review by the entire 12-member court. RIM faces the possibility of an injunction against sales or operations in the U.S., which, according to the New York Times , is 70% of its revenue. Two interesting things are bound...

There are blogs I check now and again and one I am reading start to finish. The former category includes blogs to which I have linked on the right. The latter blog is called The Real-Life Twinkie Experiment . It purports to be the experiences of an identical twin who switched lives with her 2L law student sister. It is well written and entertaining. Thus, I am fairly convinced it is a work of fiction. But, the depiction of the law school experience is pretty compelling if a bit overly dramatic.

For years, Customs has said that importers can't seek a refund of duties paid on NAFTA-originating merchandise via standard refund. The reason for this is that if the importer failed to make a claim at the time of entry and Customs liquidates it accordingly, it made no mistake that can be challenged. At least that has been Customs' take on the question. If you want a post-entry refund, you need to apply for it via a request for reliquidation under 19 U.S.C. § 1520(d). These requests must be filed within one year of the date of importation. The Court of Appeals for the Federal Circuit has now had the opportunity to weigh in on this in a case called Xerox Corp.Vv. United States . Xerox filed protests to seek NAFTA refunds and Customs denied all but one of the protests finding them to be untimely. This is because all but one of the protests was filed more than a year after the date of entry. Customs treated the remaining protest as a request for reliquidation. The Federal Circuit ...

Anyone looking for a policy job who is willing to relocate to DC should send a resume to the President of the United States. Customs Commissioner Bonner has announced his intention to retire. I'm not sure what the job pays but I'm guessing it comes with decent benefits. You probably also get a pretty high security clearance, lots of opportunity for travel, and a big staff. On the downside, you are near the top of the food chain with respect to Homeland Security. If anything breaks bad via a U.S. port of entry or an immigrant, it will not look good on your resume. Plus, you need to be sure to keep Congress happy. That can't be easy, or fun.

I have been annoyed lately by a creaking sound coming from my bike saddle. It happens almost every time I hit dead bottom on a pedal stroke. This is new, my bike used to be very quiet. I took it to the guys at Turin in Evanston and they lubed the rails. That helped for a few days, but the noise returned. At this point, I am overwhelmed by literary references. The obvious one is to Poe . It is impossible to say how the sound entered my ears, but, once heard, it haunted me day and night. Object there was none. Passion there was none. I loved the old saddle. It had never wronged me. It had never given me a sore or rash. I think it was in the rails! Yes, it was this! The rails creaked the sound of a tick--pale silver titanium rails. Whenever it sounded, my blood ran cold, and so by degrees, very gradually, I made up my mind to take the life of the saddle, and thus rid myself of the tick for ever. Of course, that is too easy. I am drawn instead to Tennessee Williams' Cat on a Hot Tin R...

How many times have you thought, or heard someone express the thought, that if you structure your transactions to avoid being importer of record, you can avoid most customs liability? That comes up a lot. People think it is beneficial to let the seller be the importer or even have the broker take care of that responsibility. Customs lawyers generally tell clients to shake that thought out of their heads. I say "generally" because there may be situations where it makes sense. Remember, this is just talk, it is not specific legal advice (it is not legal advice at all). Often, the reason we tell buyers that using a third party as the importer of record is not a liability shield is because of the possibility that Customs might treat the buyer as "aiding or abetting" the importer if something goes wrong. Worse yet, the buyer could be a co-conspirator in a criminal enterprise. None of that is good. The Court of International Trade recently issued an opinion basing third-p...

Can anyone tell me where I can buy a crystal skull , get a clear photo of Ogopogo , or explain the Coral Castle ? I figure it will be easier to do those things than figure out how to get Google rankings. It is apparent to me that most of the visitors to this site that come via a search engine do so through MSN Search, followed by Yahoo, with Google a distant third. I can't figure out how it is that the search "customs law" gets me number one placement on MSN but relegated me to the second page of Yahoo results. In Google, I have a hard time even formulate a search that finds this page. If the search is "customs law blog," I stay number one on MSN and move up to a respectable number 10 on the Yahoo results. On Google, I was not in the first four pages. Anyone who might read this and has any tips, I'd appreciate them. In the meantime, ignore the following text, it is here for experimental purposes only. Customs law, NAFTA, reasonable care, dumping, countervail...