The Government has its tentacles in all imports. This statement is not a criticism (there are many valid and historical justifications for exercising this jurisdiction), but merely recognizes the concrete, cold reality that importers must live with. The other reality is that government agencies are staffed by (horrors) humans who, for the most part, do a good job, but who sometimes act in a boneheaded manner that costs importers lots of money. If someone who was not operating under government authority messed with your shipments, you could probably sue them. Winning and collecting on the lawsuit are whole different matters, but you have a right to sue them. But what if CBP or FDA seizes your shipment with little justification. Can you sue? Cue the anachronistic legal relic. The controlling doctrine has its roots in medieval English common law and is called sovereign immunity, or “the king can do no wrong.” Why our federal courts decided a long time ago to import this precept to our democracy is a tale beyond the scope of this article, but the crux is that you cannot sue the federal government without its permission. The federal government does not surrender this kind of permission easily, but it did so in 1948 when it enacted the Federal Torts Claims Act. Now you have permission to sue the US Government, but there are a slew of exceptions. For importers, the most important one is 28 USC § 2680(c) “(a)ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs . . . or any other law-enforcement officer.” There are, of course, other things that federal agencies do to importers that go beyond detaining goods, and it may be wise to consult with the extensive case law history under the Federal Torts Claims Act and other laws, but it is safe to say that importers have not faired well when they tried to sue the federal government for improper detention of shipments.
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The Bureau of Industry and Security (BIS) issued on August 2nd an interim final rule about Commodity Jurisdiction (CJ) determination requests. This interim final rule is a bit of a misnomer. While it adds a couple sections to the Export Administration Regulations, it does not really create any new rule, but instead clarifies how CJ determination requests work. It is mostly a warning to exporters to stop filing classification requests and requesting advisory opinions with the BIS to circumvent the filing of a CJ determination request with the State Department’s Directorate of Defense Trade Controls (DDTC).
The BIS is visible irked that exporters file and obtain from the BIS classifications and advisory opinions without first making sure that a State Department license is needed. Why would exporters do this? Time is one consideration. The DDTC takes several months at a minimum to respond to a CJ determination request. In contrast, the BIS has a much shorter turnaround time, often less than a month. Exporters may also fear the additional legal exposure from having to obtain a State Department license and from registering as an arms exporter. Apparently, exporters obtain BIS classifications or an advisory opinion from the BIS as a shield against any enforcement proceedings from the State Department or just to avoid getting a State Department license. The BIS has announced through this interim rule that this ploy will no longer shield an exporter against criminal penalties from the State Department. However, the interim rule leaves unanswered questions. First, why is the BIS handing out classifications and advisory opinions for items it does not even have jurisdiction over? Why is the agency cutting itself slack when exporters get none? The BIS’s website warns, “If you are not completely sure of the export licensing jurisdiction of an item, you should request a CJ determination.” Shouldn’t the BIS shoulder an equal or greater burden of consulting with the State Department if it is unsure whether it has jurisdiction over an item? If some exporters are using the BIS to get around the State Department (is there even any proof of this?), why isn't the BIS revamping the way it handles classification requests and requests for advisory opinions? Second, who authorized the BIS to speak for the State Department, much less the whole federal government? The interim rule says “Advisory opinions may not be relied upon or cited as evidence that the US Government has determined that items described in the advisory opinion are not subject to the export control jurisdiction of another agency of the US Government.” An exporter gets into trouble with the State Department, not with the BIS, for failing to obtain a requisite ITAR license. Let's hear it from the State Department if it does not like when exporters use the excuse "but the BIS let me do this." Perhaps President Obama’s much anticipated overhaul of our nation’s export laws will answer some or all of these questions. In the meantime, you have until October 1, 2010 to submit a comment to the BIS regarding the interim final rule. For now, exporters must take this interim rule to heart and should accommodate the warning in the rule. If you will be filing Commodity Jurisdiction determination requests, your exports may take many months to go through all the export compliance steps. There is one other development in regards to CJ determination requests. On August 4, a final rule was issued that requires the electronic filing of CJ determination requests. There is one difference between this and the earlier notice, namely, this rule was issued by the State Department, the agency with actual jurisdiction over CJ determination requests. Everybody imports, especially the federal government. Or so that is the lesson that I decided to take away from a tiny black stress bull handed me by another lawyer in my firm. Funny, “stress” and “bull” seem to naturally go well together, don’t they? The USDA is using these diminutive, plasticine bovine to promote its Plant Protection and Quarantine (PPQ) program. It’s pretty cool when a federal government agency hands out promotional products, but I don’t get why it’s doing it. Why promote? Why the carrot? It’s not as if importers and exporters have a choice to participate in PPQ. Everyone's shipments are screened under PPQ. It’s as if the TSA handed out t-shirts to promote its x-ray screening at the airport or your local police department gave out tote bags to promote its use of laser speed guns.
Maybe the USDA is using tiny black stress bulls to liven up the drab sameness of just another bureaucratic hurdle. Maybe it is just having fun. You have to agree, the tiny black stress bull is cute, in a sort of menacing way. Or maybe the agency sensed that a terrible dread is building up within the trade community in anticipation of the PPQ program, and the only answer is to hand out these babies in the hope of breaking up the anxiety. The USDA, like many others, wrongly and tragically thought that stress balls or stress toys reduce stress, when they, in fact, induce stress in otherwise tranquil humans. Take me for example; I freaked when I squeezed my tiny black stress bull and it’s leg almost fell off. I don’t need that kind of aggravation to compound my already pressurized day. Other than my being bothered by an unseemly fragility of such a macho animal, I have additional issues with my tiny black stress bull (I apologize that I keep repeating myself, but I may never again get an opportunity to say tiny black stress bull). PPQ is about, in part, import and export enforcement, is it not? USDA imposes strict requirements on importers and exporters, does it not? You should expect the agency, therefore, to be sensitive to and comply with those very regulations, would you not? [Here I will assume that you answered all questions in the affirmative; if not, please secure your own tiny black stress bull from the USDA and ignore the rest of my commentary]. Ladies and gentlemen of the jury, I show you Plaintiff’s exhibit 1, a picture of the country of origin marking for the tiny black stress bull. We will not deal for the moment with the ethical implications of a federal enforcement agency's failure to purchase domestic products and thereby piling on the nation’s trade deficit. Instead, I focus your attention on the label with China on it. Are you having a hard time seeing it? Exactly! The manufacturer or perhaps the importer placed the label in, ahem, that region that is the most sensitive and pronounced for any bull (other than its horns, a clue in itself), just south of its belly button, if bulls had belly buttons. If you have not yet found it, look to the upper right hand side of the photo. In most bulls, you would be able to see the label easily, but not our tiny black stress bulls. More alarming still, the label is the flimsiest of stickers, just waiting for the slightest moisture or pressure to peel it away from the product it limply identifies. Section 134.11 of the US Code of Federal Regulations requires that imported items be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article will permit. Does our tiny black stress bull meet all, or any, of these elements? Is the China label conspicuous and legible? Yes, but only if you discount the intense squinting and the magnifying glass that are required to find it. Is the label indelible and permanent? This one is harder to judge since I’ve had the tiny black stress bull only for about seven hours, but I would be surprised if the label was still there in the morning, especially not if the cat finds my tiny black stress bull. Perhaps the “as the nature of the article will permit” language of the regulation will save this label from violating the law, but what is the nature of a polymer stress ball? How can an artificial construct, an offspring of the BP oil spill, if you will, even have a nature? Suddenly we find ourselves in the arena of philosophy, a discipline well beyond my expertise or taste, and an activity that makes my head hurt and my heart palpitate. Quick, where’s my tiny black stress bull! A couple of years into this economic malaise and there are no unequivocal signs of recovery.
There is a temptation during economic downturns for companies to slack off in the legal compliance area. Not only is it dangerous to surrender to that urge, but it also misses the great economic advantages that inevitably come from maintaining a real trade compliance program during economic slowdowns. Let’s take audits or investigations, for example. They are like having federal regulators perform a company-wide root canal. But a fascinating realization happens in the months and years following an audit or investigation. Defending and preparing for the intrusion impose a discipline that helps the target company become more profitable in the long run. Back to the root canal. You get dental rot because you aren’t as attentive as you should have been to your dental health or, if you were attentive, something snuck through undetected in spite of your best efforts. But a bad tooth is a bad tooth. You wouldn’t stop brushing and flossing during lean times, would you? Indeed, it is during lean times that you take extra care to make sure those things you currently have and the processes in place are not compromised out of fear that you won’t have the resources later to tend to emergency repairs. Taking pain drugs to mask the problem and in the hope that the infection won’t spread is bound to land you in the emergency room and wipes out any “savings” from not going to the dentist and setting you up for an early introduction to the lovely lifestyle of dentures. But if you dare visit the dentist, you certainly are prepared to save your winning smile. If you have a sound international trade compliance program, you can better take advantage of government initiatives to your advantage. For example, you and your industry peers may be able to bring a successful challenge on foreign competitors under our antidumping laws. You will be better able to take advantage of the protections that US Customs and Border Protection offers to protect your intellectual property. Is there proof that trade compliance is a money saver? It’s difficult to marshal empirical evidence for or against the proposition, but it’s clear that enhanced penalties for both export and import violations are designed to dissuade companies from viewing fines and penalties as the cost of doing business, merely a nuisance that one suffers through rather than invest in compliance programs. It’s hard to hold on to that kind of thinking, especially during lean times, when you’re whacked with penalties in the tens of millions of dollars. Let’s also give the Government some credit for trying to provide empirical proof that compliance saves you money. Cargo examinations and delays are bottom line killers, but does enrolling in voluntary compliance programs like the Customs-Trade Partnership Against Terrorism (C-TPAT) help? Yes, according to CBP. Neglecting trade compliance during lean times allows obvious and hidden problems to fester. Now is the time to take a full measure of your compliance weaknesses and strengths, to find the economies of scale (you wouldn’t believe how much waste and fraud a good compliance program can eliminate), and to avoid problems with federal regulators. Trade compliance, even in big companies that have compliance programs with all the bells and whistles, is seldom a big-ticket item compared to other company expenditures. It becomes a big-ticket item only when the feds knock at your door and you’re not ready. Federal enforcement authorities have an uncanny ability to detect when companies are cutting legal corners. So, don’t cut any. Corners, that is. Keep your compliance efforts robust and honest. Your bottom-line will be healthier for it. Maybe even your smile will improve. Assume you pour money, sweat, and tears into developing a nifty new technology. You want to make sure no one steals your hard work, so you file for and receive a patent from the US Government. You find out that one of your competitors is infringing your patent. You file a complaint with the International Trade Commission (ITC) under 19 USC § 1337(a)(1)(B). That section makes unlawful “[t]he importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent.” The ITC finds merit in your complaint and orders a formal investigation. You are confident that the ITC will order (upon the President’s approval) US Customs and Border Protection (CBP) to exclude the infringing merchandise. Then your competitor (the company importing the infringing merchandise) files for bankruptcy. You are stunned when the bankruptcy judge orders the ITC to immediately stop its investigation. While the automatic stay in bankruptcy stops collections activities against the bankrupt debtor, it normally cannot stop federal agencies from doing their job. However, this bankruptcy judge views the ITC investigation as different because it was initiated at the request of a private party, so it was not really the federal government that was being restrained.
Do you think the bankruptcy judge was correct? The federal court from the Eastern District of Virginia did not in ITC v. Jaffe, a decision rendered on June 28, 2010. The court concluded that the bankruptcy judge made a mistake. The automatic stay in bankruptcy could not prevent the ITC from continuing to investigate the bankrupt debtor. While the patent owner filed the complaint with the ITC, it was the ITC that initiated the investigation pursuant to its police and regulatory power. That the patent holder stood to inherit the bond posted by the infringing importer did not mean the patent holder was a creditor, the court reasoned. The lesson is that bankruptcy can give companies and individuals valuable breathing room and keep bill collectors at bay, but it does not prevent the ITC from investigating whether the bankrupt debtor is violating someone’s intellectual property rights and it does not prevent CBP from excluding the debtor’s infringing merchandise. “There is nothing I can do to help your case.” The immigration attorney barely finished his sentence when the world came crashing down for 16-year-old Deysi Torres. She did not have to speak English to know what he meant—the lawyer’s tone and grim facial expression clearly conveyed the hopelessness of her situation.
Originally from San Alejo, El Salvador, Deysi is one of thousands of people from Latin America who travel thousands of miles in search of a better life in the United States. Roughly five percent of these migrants are underage children like Deysi was when she left her home country. When Deysi was five years old her mother became ill and died. Never having known their father, Deysi and her siblings were raised by their grandparents. Growing up, Deysi had big dreams of becoming a nurse and living with her uncle in America. “I remember always talking to my sister about going to stay with our uncle,” said Deysi, whose aging grandparents did not have the means to provide for their young grandchildren. By the time she turned 16, Deysi was determined to go after those childhood dreams. This meant making the treacherous journey by bus and foot through El Salvador, Guatemala, Mexico, and across the U.S. border to the City of Anna, Texas, where her uncle and his family live. Aware of their limited ability to take care of their grandchildren, Deysi’s grandparents had no choice but to allow her to leave the country in search of a better future in America. For many unaccompanied children, menaced by predatory smugglers and corrupt police, this dangerous journey ends tragically. Thousands are stopped by authorities as they try to cross the North American border and taken to detention centers before being deported. This was the case with Deysi. She had been travelling by bus and foot for close to a month before U.S. Immigration and Customs Enforcement (ICE) officers caught up with her and sent her to an immigration detention center for minors in Miami. “I was so tired from walking for days, I was almost relieved,” she said of the encounter with ICE officers. “I was dirty and stinky. I hadn’t showered in days.” Many child migrants end up spending months in detention centers, tangled up in the bureaucratic legal process. “I was confused and nervous. I didn’t know if the immigration people were good or bad. I didn’t know what to do or think,” said Deysi, recalling the month she spent at a facility in Miami. Fortunately, she was eventually able to stay with her uncle in Texas while awaiting immigration court proceedings. She and her uncle tried everything they could to find a way for her to obtain legal status in the United States—a process made that much more difficult by their inability to speak English. But they had a difficult time finding an attorney to represent them and were continuously told that there was nothing anyone could do to keep Deysi in the United States legally. By a lucky twist of fate (or “God’s hand,” as Deysi put it) she came across a flyer from the National Center for Refugee and Immigrant Children (NCRIC) and called for help. The organization—a division of the U.S. Committee for Refugees and Immigrants (USCRI) dedicated to providing pro bono legal services for unaccompanied immigrant children—assigned Deysi’s case to Dallas-based attorney Oscar Gonzalez. “I took the case after reading news stories about the warehousing of immigrant children,” said Oscar, a founding member of Gonzalez Rolon Valdespino and Rodriguez, LLC (GRVR), a small law firm specializing in international trade. Even though his experience in immigration law was admittedly limited, Oscar signed on to the case because he wanted to ensure that Deysi can remain in the United States with her family. Over the course of three years, Oscar would spend hundreds of hours working on Deysi’s case, guided along the way by NCRIC’s in-house immigration law experts. “The good will created by taking on pro bono projects is much more pronounced in a small firm. It permeates the whole place with a sense of accomplishment, or a feeling that we changed the world positively,” said Oscar. “But there were other angels along the way that helped, including translators, health practitioners, teachers, and school staff.” The hard work paid off: Deysi, now 20, received her green card in October 2009. She continues to live in Texas with her aunt and uncle and their four children. By now she has graduated from high school and speaks fluent English. Deysi is bursting with pride when she talks about her brother back in El Salvador who has recently graduated from college with a degree in engineering. She too is well on her way to making her childhood dreams a reality: she is currently applying to nursing schools. “I still want to be a nurse,” she said. “I like to help people.” Oscar describes Deysi as a quiet young woman with a soft smile and trusting eyes. “Deysi’s gratitude disarmed me and almost brought me to tears after each successive step in her case,” he said. “It is a true honor to be invited to the beginning of this young woman’s life in the United States.” If only they made GPS units for legal compliance.
So you’re driving your family from Texas to visit the new Harry Potter theme park in Orlando. You’re under the gun. You must complete the long drive before tomorrow afternoon because you made special reservations and plans for your daughter to spend her birthday at the park. You can’t be late. But you've never been to Florida. “How hard can it be to find this park?” you think to yourself, confident that your advanced, albeit largely untested, driving and navigation skills will get you there in time and without a hitch. But your spouse keeps bugging you to buy a map “just in case” (you draw the line at GPS because you view the technology as undignified and wimpy). You give in to her demand (you hate it when she’s completely correct) and, while gassing up the car, you rifle through the collection of maps at the local convenience store. This is Texas, so the store does not have an Orlando map, but it does have a map to Plano, Texas, a city of comparable population and geographic configuration. You plop down $10.27 (includes tax) and stick the map in the glove compartment. The drive proves more challenging than you anticipated, and you need to make up several hours that you lost somewhere along the Gulf Coast. You finally reach the Florida border, but there are no road signs to the Harry Potter theme park or Orlando. You are fast approaching a fork in the road. You’re probably doomed anyway, but take the wrong road and your fate is sealed. Everyone in the car starts to panic, so your wife pulls out the new map from the glove compartment, opens it and asks “Honey, where’s the map to Orlando?” [Disclaimer: the story you just read is completely fictional, excepting the part about the new Harry Potter park, which rocks from all accounts]. I know what you are thinking. There isn’t an idiot on earth that would buy a map to a city he/she is not visiting. I respectfully disagree. Lawyers see this kind of thing happen every day, not with cartography, but with compliance manuals and procedures. Manuals and procedures are maps of sorts that lead companies to legal compliance. You would think that their importance would be more widely recognized. Companies regularly buy off-the-shelf compliance templates, “borrow” some other company’s manual, or fail to update a good compliance manual that may have been correct and helpful in the distant past. While we are on the subject of the Gulf Coast, let’s talk about BP’s oil spill and the importance of good compliance policies. BP’s emergency cleanup plan instructs its employees to look out for walruses, sea otters, sea lions and seals during oil spills in the Gulf of Mexico. The problem is that none of these mammals live in the Gulf (I guess we should all be thankful that BP did not also list orcas, penguins, and flying reindeer). BP’s emergency plan also lists the contact information for an ocean biologist who has been dead for five years, and unless BP or Kevin Costner know a reputable medium, that information is likely to be of little value in cleaning up the spill or mitigating BP’s legal exposure. It is not that BP is exceptionally bad when it comes to its emergency procedures, just equally bad. The news services are reporting that BP copied verbatim its emergency cleanup plan from other major companies. I cannot predict whether BP will be indicted for its misdeeds and mistakes in the Gulf. However, I can predict with some confidence that if BP is indicted and convicted, the Government will trot out BP’s shoddy emergency cleanup plan to convince the judge to inflict the most severe punishment possible. BP’s oil spill is a nightmare that keeps on giving, but it may be possible to find an untainted, healthy anemone in all the oily muck. Maybe companies will more often evaluate their compliance procedures before emergencies pop up. Maybe it will finally sink in that due diligence requires that they DO diligence. If your compliance procedures are not customized to fit your company’s unique needs and culture, and if they are not updated regularly to accommodate rapidly evolving laws, technology, and changes within a company, then they are as helpful as a Texas map in Florida. In A Few Good Men, Demi Moore played an attorney defending two Marines against criminal charges. When testimony was not going her way, she objected, and the judge overruled her objection. She then “strenuously” objected, was overruled, and then asked that the judge to reconsider his ruling, which he, of course, did not do. She was Sisyphus in fast motion, futilely pushing up the same hill and before the same arbiter, and her co-counsel castigated her for her persistence.
It is hard to convince anyone they are wrong, especially judges. We lawyers (judges are lawyers) are a haughty bunch by training and disposition. Surrendering a centimeter to the other side diminishes us and our clients. For a court, the loss of face can be devastating. Revising a previous ruling suggests the possibility of inattention to detail or flouting of the law. Rather than self-flagellate, judges and parties tend to rely on the speculative system of appeals to make the necessary adjustments and balance the scales of justice. Today the Court of International Trade (CIT) rejected the US Government’s request for the court to reconsider its judgment in favor of UPS, the defendant. The Government has long tried to collect a $75,000 penalty against UPS for misclassifying imported items and for not exercising “reasonable supervision and control” over its customs business as required by 19 USC 1641(b)(4) and 19 CFR 111.1. Previously, the Court of International Trade and, upon the appeal, the Court of Appeals for the Federal Circuit both agreed that UPS failed to properly classify the items. UPS still won (as it now stands) because the Government (specifically the CBP FP&F officer) failed to testify in the original trial that he considered all ten factors under the definition of “reasonable supervision and control.” See 19 CFR 111.1. In today’s ruling, the CIT rejected the Government’s request to reopen the trial to introduce the “ten factors” testimony and to reconsider the judgment it previously entered in UPS’s favor. The CIT refused to concede that it had committed “multiple and manifest errors” as alleged by the Government. Although UPS won this latest skirmish, one of the most important issues to customs brokers remains unsettled in this prolonged litigation, namely whether CBP can penalize brokers beyond $30,000 for multiple violations under 19 CFR 111.91. One certainty is that from now, CBP will regurgitate the ten factors each time it penalizes a customs broker. FP&F officers now have a lot more hoops to jump through. For the curious, here are the ten factors under 19 CFR 111.1: the training required of employees of the broker; the issuance of written instructions and guidelines to employees of the broker; the volume and type of business of the broker the reject rate for the various customs transactions; the maintenance of current editions of CBP Regulations, the Harmonized Tariff Schedule of the United States, and CBP issuances; the availability of an individually licensed broker for necessary consultation with employees of the broker; the frequency of supervisory visits of an individually licensed broker to another office of the broker that does not have a resident individually licensed broker; the frequency of audits and reviews by an individually licensed broker of the customs transactions handled by employees of the broker; the extent to which the individually licensed broker who qualifies the district permit is involved in the operation of the brokerage; any circumstance which indicates that an individually licensed broker has a real interest in the operations of a broker. In honor of James Joyce’s Ulysses, Ireland celebrates Bloom’s Day every June 16. The novel, regarded as one of modern literature’s masterpieces, has been controversial and the target of censors since it was written almost a hundred years ago. It has vexed readers and the courts as they try to wrestle with its complexities. Apple Computer apparently does not share this sense of constraint. Apple recently excised from its popular apps store what it considers offending images that are part of a graphic version of the novel. Whether the company should be allowed to do this will undoubtedly be litigated in the coming years. Those opposing Apple’s censorship will analogize to and distinguish the powers granted US Customs and Border Protection in that agency’s previous efforts to keep out Ulysses from entering through our nation’s borders.
19 USC 1305 Our nation employs a formidable array of laws and enforcement personnel to keep out offending items, like unlicensed weapons, illegal drugs, ancient cultural relics, stolen masterpieces, counterfeit goods, faulty toys/consumer products, forced labor products, infected produce, and endangered species. US Customs and Border Protection (CBP) is also our nation’s censor of first resort. This power is universally endorsed in light of pornography, especially child pornography. But what about censoring ideas? Does the agency have a role in keeping out material based solely on its content? You would think not. After all, we have the First Amendment to protect crazy, outlandish, and unpopular ideas. We also have a US Supreme Court that even as it turns every rightward, still maintains a strong libertarian bent when it comes it protecting public expression. But strange things happen to our constitutional protections at our nation’s border. They dissipate to almost nothing. For example, the courts have carved out a border search exception to the Fourth Amendment’s protections against unreasonable searches and seizures. CBP officials can search you and your possessions at the border without a warrant and without probable cause. Almost any hunch will do and almost any intrusion is allowed. CBP is granted license to aggressively and unapologetically probe our laptops, cell phones, and any electronic device we possess for most any old reason. I have never read a satisfactory explanation why our courts seem to go flabby at the border, but the Bill of Rights starts to hobble noticeable as it approaches the border, like Superman with kryptonite. It is almost as if our federal judges have no faith that the values embodied in our supreme charter, which they are pledged to protect, can survive the rough and tumble of border life. CBP is given vast and surprising powers under 19 USC § 1305 to act as censor. Part of the Tariff Act of 1930, this provision prohibits the importation of a motley list of items, including the content of writing in apparent contravention of the First Amendment: All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States, or any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for causing unlawful abortion, or any lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery. Section 1305 survived a constitutional challenge before the US Supreme Court. US v 12 200-Foot Reels of Super 8mm Film, 413 US 123 (US 1973). Justice William O. Douglas complained futilely in dissent, “I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents.” Justice Burger writing the majority opinion clearly disagreed. Not all judges have been as Victorian in their outlook. In of the most famous and fascinating opinions ever issued by a US district court, and one composed with as much dramatic flair as any novel, the Honorable John Woolsey decided that Ulysses was not obscene and could not be confiscated by the Customs Service. US v One Book Called "Ulysses,'' 5 F Supp 182 (DC NY 1933). Judge Woolsey concluded: The book as a whole is not pornographic, and, while in not a few spots it is coarse, blasphemous, and obscene, it does not, our opinion, tend to promote lust. The erotic passages are submerged in the book as a whole and have little resultant effect. If these are to make the book subject to confiscation, by the same test Venus and Adonis, Hamlet, Romeo and Juliet, and the story told in the Eight Book of the Odyssey by the bard Demodocus of how Ares and Aphrodite were entrapped in a net spread by the outraged Hephaestus amid the laughter of the immortal gods, as well as many other classics, would have to be suppressed. Indeed, it may be questioned whether the obscene passages in Romeo and Juliet were as necessary to the development of the play as those in the monologue of Mrs. Bloom are to the depiction of the latter's tortured soul. There are other cases where the federal courts decided whether US Customs properly flexed its censoring powers under Section 1305. A district court reversed the forfeiture of “Contraception” a book written by Marie Scopes, a British doctor. True to its title, this was an instructional manual written for physicians. The judge concluded that the book was not obscene “for the reading of it would not stir the sex impulses of any person with a normal mind.” US v One Book Entitled "Contraception,'' 51 F2d 525 (DC NY 1931). Section 1305 has even reached the importation of contraceptive devices. In a case that foreshadowed Roe v Wade, the Ninth Circuit sided with a New York gynecologist, and against the US Government, when the doctor imported a package of 120 vaginal pessaries (medical devices sometimes uses for contraception) “where it would not be desirable for a patient to undertake a pregnancy.” US v One Package, 86 F2d 737 (2nd Cir 1936). Lottery tickets too? The following discussion is not about censoring content, but it says a great deal about the federal government’s extensive and strange power to seize offending material at the board. Section 1305 does not allow you import lottery tickets. You cannot even mail them, although you can, of course, carry them over state lines. See also 18 USC 1301. The reason for this restriction is unclear, but I suspect there are concerns with gambling and crime syndicates. Perhaps the justification is that each state does not want gambling competition from other states or countries. Or maybe the law is intended to prevent people with winning tickets, who cannot make the trip, from selling their tickets to agents who will redeem the tickets in person, as is normally required. This seems to be the court’s motivation in Courtertier v Gil Bonair, 173 F3d 450 (1st Cir 1999). Mr. Courtertier was “a licensed Puerto Rico lottery agent which is in the business of transporting drawn prized Puerto Rican lottery tickets from Saint Thomas to Puerto Rico to redeem said tickets.” US Customs agents in Puerto Rico confiscated his stash of lottery tickets on his way back from the US Virgin Islands. He had around 22,000 lottery tickets worth about $46,000 dollars. The lottery tickets were all issued by the Commonwealth of Puerto Rico, so CBP could not have confiscated them if he had bought them in Puerto Rico. He gave CBP an opening when he carried the lottery tickets on his flight back from the Virgin Islands, a foreign country. The court allowed CBP to keep the confiscated tickets. Suppressing political activists Our government has also used Section 1305 to intimidate citizens who oppose its policies, as seen in several court challenges by Edward Haase against the Government. US Customs and FBI officials seized and photocopied Mr. Haase’s books and notes as he returned from Nicaragua, where he had been writing articles that were critical of the Reagan Administration’s policies in that country. Eventually the courts ordered the government to return his papers, awarded him attorneys fees, and issued a permanent injunction. See the Center for Constitutional Rights summary of the Haase and related litigation. The Customs Service issued a directive reversing its policy, a policy that apparently is still in effect. Section 1305 today Most of the litigation and court challenges under Section 1305 happened many decades ago. The federal government may have been reluctant to use the provision in light of society’s changing mores and the Supreme Court’s evolving First Amendment jurisprudence. We can also blame the Internet as most content is now sent via the ether in digital form rather than over nation’s borders in paper form. However, Congress has not repealed 19 USC 1305. It is almost as if it is being kept in reserve “just in case.” Like it any other law at their disposal, enforcement authorities can invoke 19 USC 1305 whenever they see a need and opportunity. You Be The Judge Be your own judge and bypass both Apple and CBP by reading Ulysses yourself. Click here. Often the most direct and quickest way to have the Bureau of Industry and Security (BIS) respond to your export questions is through the telephone. Indeed, the BIS likes to tout the service as a wonderful benefit to the world.
There are drawbacks, however. If you are calling to the BIS's general counselor desk (agency does not list the contact information of all the various counselors and officials, so the general help desk is sometimes all you have) it can be a complete crap shoot. Some counselor will talk to you only if you identify both yourself and your company completely. The counselor may have only superficial or incorrect knowledge about your issue. Indeed, the information and advice given might be contradicted by the information and advice that another BIS officer may have offered. Worse still, unless you have taped the conversation (which may be illegal), you have no proof of what was said to you. If the export goes wrong or you are accused of violating the law, again, you will have no proof about what was to told to you. Exporters should use the BIS's help desk, but should not rely on it unconditionally. You must make your own independent confirmation of the state of the law. By the way, is emailing the BIS or filling out its online contact form any better? Sure. A written response is much better. There is a downside, however. You still need to identify yourself and your company, a condition that can compromise your ability to be frank. Ideally, you should hire a third party, preferably a lawyer, when you need to contact government officials. |
Oscar Gonzalez
Principal and a founding member of GRVR Attorneys. Archives
September 2016
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