Customs Law

Yesterday, I was interviewed by the Daily Herald about the inter-agency working group on product safety. The impetus for this was a visit to Chicago's O'Hare international mail facility by HHS Secretary Michael Leavitt. You can read the story here . By the way, how is it that I can only generate a single comment to the last post? I know (generally) who reads this blog. I know that there are lots of customs lawyers, business people, and government folks visiting. Throw me a bone people! It takes some effort on my part to inform and entertain you. Only one of you was inspired enough by the stuffed animal/radio image to know I was thinking that the Whirlpool case should have discussed composite goods. Thanks to that anonymous comment poster for covering for me. Keep it up and the rest of you will get nothing but links to You Tube videos of this guy .

For those of you who check regularly, I'll be gone at least until Wednesday. Drop a comment if you see anything of customs-related interest. If anyone want to comment on the decision in the Whirlpool case , have at it. Here's a hint . Discuss amongst yourselves. Wow, I think I just outsourced my blog.

According to press reports , Immigration and Customs Enforcement agents today conducted raids in 16 states looking for mod chips for video game consoles. These chips let users play pirated video games and violate the Digital Millennium Copyright Act of 1998 . This is a serious issue that costs industry lots of money from pirated software. Often, the pirates are part of larger criminal enterprises. So, efforts to enforce these laws are important. But, just imagine the poor awkward teenager in the basement with his pizza and Jolt cola trying to explain to his angry parents why ICE agents just knocked down the door. He is so grounded.

I took a few days to go sailing. My crew and I went from our home port north of Chicago to Racine, WI and then on to Milwaukee. On the way back, we stopped in Kenosha. Just a bit of rain and one day of no wind. Other than that, a good trip. Kenosha turned out to be a surprise. I was expecting a somewhat depressed factory town but found a vibrant lakefront community with new museums and plenty of restaurants. If you happen to be in the area, don't miss Frank's Diner for breakfast. Just get there early.

The Federal Circuit has done the importing community a favor by reversing a CIT decision that effectively undermined the value of a prior disclosure. Traditionally, importers have made prior disclosures to avoid penalties in excess of interest on the unpaid amounts. In U.S. v. National Semiconductor , the Court of International Trade held that the U.S. was also entitled to interest to compensate it for the loss of revenue, separate and apart from the penalty. The CIT based this decision on 19 USC 1505(c) which establishes the rate of duty applicable to underpayments of duties due on liquidation or reliquidation. In short, the Federal Circuit held that 1505(c) was not an independent authorization for the U.S. to collect interest in a prior disclosure situation. The Court reversed and vacated this aspect of the decision and sent it back to the CIT for further consideration. Prior disclosers may not breathe again.

I grew up in New England and spent many summers on the beaches of New Hampshire and Maine. I remember my parents or grandparents often sending a dazed and blueish lobster to an untimely and most likely very painful death in a large pot of boiling water. I feel guilty about that now. While some may argue that the tail produces the best meat and others may wax on about the delicate joys of the lobster's tomalley , every kid knows that nothing beats the claws; big claws, full of juicy meaty that is easy to get at. Which brings me to this story in which Customs & Border Protection participated in the interception of illegal lobster smuggling in Miami. It is not entirely clear where the lobsters originated, but it would appear that they are from the Bahamas or the surrounding waters. CBP seized 37 tails and zero claws. Why no claws? Because only true lobsters (what we like to call "Maine lobsters") have the really yummy claws. Most likely, these creatures were not even w...

Based on this press release , it seems it takes a lot of high-ranking people to do something about unsafe imports. Roll call at the new task force includes: the Secretary of Health and Human Services, who shall serve as Chair; the Secretary of State; the Secretary of the Treasury; the Attorney General; the Secretary of Agriculture; the Secretary of Commerce; the Secretary of Transportation; the Secretary of Homeland Security; the Director of the Office of Management and Budget; the United States Trade Representative; the Administrator of the Environmental Protection Agency; the Chairman of the Consumer Product Safety Commission; and other officers or full-time or permanent part-time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned. Funny, I thought there were already federal agencies charged with this job including CPSC , FDA , Agriculture , and Transportation .

A couple Customs & Border Protection and trade law related stories made it into the New York Times today. Here is the short version of each. Customs has implemented rules barring the importation of ancient Cypriot coins under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (see 19 USC secs. 2601-13 for the details). Under the Convention, the U.S. can enter into bilateral agreements to prohibit traffic in archaeological and ethnological artifacts. The interesting thing in this case is that coins are usually excluded because they were often widely circulated and proving provenance can be difficult. This restriction, according to the article, has the numismatic world all upset. The second article has to do with the last ditch effort WTO boss Pascal Lamy is making to save the Doha round from collapse. The pitch simply involves floating a proposal wherein U.S. and other farm subsidie...

. . . will keep you out of the Dedicated Commuter Lane. At least according to this story from the El Paso Times. Apparently the Ag Inspectors have adopted a zero tolerance rule for registered international commuters. An undeclared apple resulted in a $500 fine and a loss of DCL privilege.

This is the Customs Law Blog, so I don't often dip my toes into trade law. But, my firm practices trade law, I am interested in and teach NAFTA, and I teach trade law as an adjunct at the John Marshall Law School's Center for International Business and Trade Law . So, an article comparing NAFTA dispute resolution panels to U.S. judicial decisions is kind of a perfect storm of thing that interest me. Generally, a party wishing to challenge a U.S. antidumping or countervailing duty agency determination files its claim in the U.S. Court of International Trade . The CIT is the fine institution where I spent the first two years of my legal career. Under NAFTA Chapter 19, however, an antidumping or countervailing duty dispute involving Canada or Mexico ends up being the subject of consideration by a bi-national panel of arbitrators. You can see some of the Chapter 19 results here courtesy World Trade Law.net. NAFTA panels were designed to encourage results that are consistent with t...

Here is a story from the Chicago Tribune that is full of local flavor, so to speak. We have just finished our visit from the 17-year cicada . See the pictures I posted here . Turns out dogs love to eat these critters. But, they are big and crunchy. So, dogs are advised to chew their cicadas. Otherwise, they could end up like Champ, U.S. Customs and Border Protection narcotics dog at O'Hare airport. Champ had a near-death experience after choking on cicadas but was saved by the quick action of his CBP handler and O'Hare paramedics. This story, it seems turned out better than the last CBP dog story I posted. Eddie appears to still be missing.

It's been a while since I covered oddball Customs & Border Protection news. Here is a roundup: Another arrest for smuggling exotic birds . Here is a happy wine importer who discovered that you can import more than your person exemption so long as you pay the duty. It's been a while since I have seen an importer thrilled with a 3% rate of duty. Brokers caught (and arrested ) assisting counterfeit imports. Smugglers give new meaning to the phrase " a brick of pot ."

I probably should have posted this sooner, as the date for comments is tomorrow. But, it remains interesting. I previously posted about the concern that certain changes to the 2007 tariff were not revenue neutral as was the goal (if not the express requirement) of the statute. The International Trade Commission has decided to take a look at that issue and is seeking public comment. The proposal specifically affects a couple products including bamboo flooring and radio receivers that were made subject to higher rates of duty under the 2007 changes. The proposal calls for retroactive application of lower rates. Also included in the notice are changes requested by Customs & Border Protection for administrative purposes and to better conform to the Harmonized System. In all likelihood, these changes will become the law soon.

When I can, I ride my bike to work. It is a long ride but certainly not an epic endeavor. It is 20 miles door to door each way and takes me about an hour and 20 minutes. Lately, I am happy to say, I am seeing more and more bike commuters. Usually, I check out the bikes, particularly those that pass me. I am generally fine when I am passed by a Lightspeed or Kestrel road bike. Less so, when I am passed by a 20 year old three-speed Raleigh or Huffy with a milk crate on the rear rack. But, I admit, I am routinely passed by both groups of riders plus recumbents and legions of Treks and Giants. Lately, however, I am busy looking at how commuters carry their stuff. I have a Topeak quick release road bike seat post rack and small bag with mini panniers . That bag is perfect for carrying a change of clothes--assuming I leave pants and shoes in the office. It also lets me carry a bunch of gear including tools, a tube, and a CO2 inflater. What I can't carry is work. More specifically, I ca...

The War of 1812 is not well understood in the U.S. Most people have a general notion that the war involved the burning of the White House and Dolley Madison saving the art prior to dropping the letter e and starting her snack food empire . Also, most Americans seem to wrongly believe we won the war. Call it a draw. Also, there was pretty fierce fighting between the U.S. and Canadian forces loyal to the Crown. Now that the saw dust may be settling in the softwood lumber war, it seems a new front in U.S.-Canadian trade friction may be developing. Apparently some in Congress think the common practice of refunding indirect taxes when goods (or services) are exported discriminates against U.S. sellers and service providers. Congressman Pascell (D-NJ) recently introduced HR 2600 which, if passed, would apply a tax on goods from “any country” that imposes an indirect tax and grants rebates of the tax on export. Although many countries do this, it appears to apply to Canada's Goods ...

Here is something I have not done for a while: a post on case law. It’s not that I don’t read the cases. It’s just that on the customs side, they haven’t really inspired much comment. But, here are a few tidbits. In Agfa Corp. v. United States (Slip Op. 07-80) , the question was whether the tariff definition of “photographic plate” trumped the understanding of that term by essentially everyone in the world. Think fast—picture a photographic plate in your head. If you are older than the digital age and have even a passing knowledge of photography, you conjured up an image of exactly what Agfa claims is a photographic plate. Everyone knows a photographic plate is a transparent piece of rigid material (usually glass) coated with a light-sensitive material. I’m not sure, but I think this is the same technology Matthew Brady used to take pictures during the Civil War . Agfa imported photomechanical (or “photolithography”) printing plates of aluminum and a photosensitive polymer or e...

I am often asked whether I have time to go sightseeing while on business trips. I wish. More often than not, it goes like this: in, hotel, meeting, out. Today, I was not so lucky. I needed to go to Washington for a meeting tomorrow morning. My 4:00 PM flight was delays for want of a flight attendant. That delay meant we got off the ground at about 4:45, which would have been fine had a line of thunderstorms not been headed for DC. We circled over Pennsylvania until we were low on fuel, at which point we landed in Harrisburg. No, there was no time for sightseeing there. I'm not sure what sites there are to see, but we were not allowed off the plane. Forty-five minutes and one tank of gas later, we were off to DC. Rather than a 7:00 PM arrival, I got to the hotel at 10:30. I'm now at the Helix, a fairly swanky spot that stops serving food at 10:00. After a long interrogation of the front desk, I determined that my best option for food was to order a pizza. Starving, I...

If I were going in for brain surgery, I know exactly what standard of care I would want the doctor to apply: No mistakes, none. Lawyers call that strict liability. The trouble is, that is not the legal standard. The doctor only has to apply the same level of care as would a reasonable surgeon in similar circumstances. That means there might be mistakes made. But, as long as the doctor provided reasonable medical care, the mistake does not amount to negligence. I may be left unable to tie my shoes, but my doctor is not negligent. In the Customs context, things would seem to be a bit different. Importers have the legal obligation to exercise reasonable care. That means the importer is the surgeon. The patient is Customs & Border Protection. The trouble for importers is that CBP also has an important role is determining what constitutes reasonable care. It's like the patient telling the doctor what constitutes negligence. I'm thinking about this because Customs recently pub...

This new technology from Microsoft (as well as the Apple iPhone) is about the coolest user interface I've seen in a while. Looks like something from a dozen different sci-fi movies including Minority Report.

I am trying to get more posts onto the blog. It would be easier if I were not buried in cicadas. Here is my front door in the morning. The black spots are all cicadas. That was Monday. It was twice as busy this morning. Here is the ornamental grass in front of my house. Each one of those red-eyed beasts is about an inch and a half long. When they start buzzing, it is going to sound like a convention of chainsaw artists around here.