Policy REgarding the Filing of Amicus Briefs by CITBA

It is the policy of the Customs and International Trade Bar Association (“CITBA”) to file amicus briefs sparingly. Amicus briefs will typically only be authorized for cases appearing before the U.S. Court of Appeals for the Federal Circuit (“CAFC”) and the U.S. Supreme Court. CITBA will consider filing an amicus brief only where the matter is considered to be in the broad interest of the public and the membership of CITBA as a whole. CITBA amicus briefs will not address arguments unlikely to affect the broad interests of the international trade community or factual issues. An amicus brief will be approved for filing only where CITBA has a unique and/or distinct interest and may provide a significant contribution to the court’s consideration of the customs or trade issues involved.

CITBA will only file an amicus brief if both the position asserted and final brief to be filed have been approved by a majority of the board members eligible to vote on the matter (government attorneys who are on the board or board members whose firms have an interest in the case are not eligible to vote, nor can they participate in deliberations with respect to the filing of such a brief). All amicus motions or briefs filed in matters in which the government is a party will indicate that while CITBA “includes U.S. Government lawyers, government attorneys did not participate in the decision to file or the preparation of this motion [or brief].”

The proponent of the requested brief bears the burden of persuading CITBA’s board of the importance of advocating the asserted position. Accordingly, to request an amicus brief, an e-mail request should be sent to a Chair of CITBA’s Trial and Appellate Committee. The e-mail should include:

  1. The date on which the proposed brief is due and the relevant court. Absent extraordinary circumstances, no requests that are due in less than 30 days will be entertained by CITBA.
  2. The full caption of the case.
  3. A copy of the lower court’s decision.
  4. Disclosure of the relevant interests in the case. List each individual organization who has or had any personal or professional interest in the case, and the bases for that interest.
  5. Disclosure of the names, firm connections and contact information of those who represent the party requesting CITBA’s amicus participation.
  6. A brief summary of the relevant procedural history.
  7. A brief summary of the facts.
  8. The question to be presented by the party requesting CITBA’s amicus participation.
  9. A paragraph explaining why CITBA should participate as an amicus.
  10. Any other amicus that are participating or considering participating.
  11. A 1-2 page statement describing specifically what issues CITBA is being requested to provide an opinion regarding.
  12. Any related cases.

CITBA is also amendable to joining as an amicus in briefs by other organizations. However, the same material must be disclosed if the request is for CITBA to join another amicus’ brief.

For amicus briefs filed by CITBA, the association pays no legal fees for the preparation or review of an amicus brief; however, it will incur the cost of printing and filing the brief.

A CITBA amicus brief will normally be signed by CITBA’s President. However, if the President is ineligible to vote with respect to the brief in question, the brief will be signed by the President’s designee.

Finally, it should be noted that the filing of an amicus by CITBA before the CAFC does not mean that CITBA is committed to filing an amicus brief in support of a Petition for Certiorari before the U.S. Supreme Court in the same matter.

 

 

It is the policy of the Customs and International Trade Bar Association (“CITBA”) to file Comments with Administrative Agencies. Comments by CITBA will typically be authorized for matters concerning the Bureau of Industry and Security (“BIS”), Customs and Border Protection (“CBP”), the International Trade Administration (“ITA”), U.S. International Trade Commission (“ITC”), and the Office of Foreign Asset Control (“OFAC”).

CITBA will consider filing Comments only where the matter is considered to be in the broad interest of the public and the membership of CITBA as a whole. CITBA’s comments will not address arguments unlikely to affect the broad interests of the international trade community or factual issues. Comments will be approved for filing only where CITBA has a unique and/or distinct interest and may provide a significant contribution to the agency’s consideration of the issues involved.

CITBA will only file Comments if both the position asserted and Comments to be filed have been approved by a majority of the board members eligible to vote on the matter (government attorneys who are on the board or board members whose firms have an interest in the case are not eligible to vote, nor can they participate in deliberations with respect to the filing of such a brief).[1] The proponent of the requested Comments bears the burden of persuading CITBA’s board of the importance of advocating the asserted position. Accordingly, to request Comments by CITBA, an e-mail request should be sent to the relevant CITBA Committee Chair, (e.g., a Customs Committee Chair). The e-mail should include:

  1. The date on which the Comments are due and the relevant administrative agency. Absent extraordinary circumstances, no requests that are due in less than 30 days will be entertained by CITBA.
  2. The full caption of the relevant Federal Register Notice (if applicable).
  3. A copy of the regulation, rule, or policy under consideration.
  4. Disclosure of the relevant interests. List each individual or organization who has or had any personal or professional interest in the issue, and the bases for that interest.
  5. Disclosure of the names, firm connections and contact information of those who represent the party requesting CITBA’s participation.
  6. A brief summary of the relevant regulatory or administrative history.
  7. A brief summary of the facts.
  8. The issue in the policy, procedure, rule, or regulation to be addressed by the party requesting CITBA’s participation.
  9. A paragraph explaining why CITBA should Comment.
  10. Any other Bar Associations or Trade Organizations that are Commenting.
  11. A 1-2 page statement describing specifically what issues CITBA is being requested to provide a Comment regarding.

CITBA is also amenable to joining Comments filed by other organizations. However, the same material must be still disclosed if the request is for CITBA to join another organization’s comments.

For Comments filed by CITBA, the association pays no legal fees for the preparation or review.

CITBA comments will normally be signed by CITBA’s President. However, if the President is ineligible to vote with respect to the comments in question, the comments will be signed by the President’s designee.

Finally, it should be noted that the filing of Comments to proposed rules, regulations, or policies does not mean that CITBA is committed to filing comments again in the same matter.


[1] All Comments filed in matters in which the government is a party will indicate that while CITBA “includes U.S. Government lawyers, government attorneys did not participate in the decision to file or the preparation of these Comments.”

Policy Regarding the filing of comments with an administrative agency by CITBA

 

 

CITBA and Trade Adjustment Assistance

Trade Adjustment Assistance (TAA) is a federal program that provides financial and other assistance to U.S. workers, farmers, and fishermen who have lost their jobs as a result of the U.S. policy of reducing barriers to trade.  The program reflects a broad policy consensus that the United States, as it pursues trade policies that benefit the U.S. economy as a whole, must maintain a strong commitment to helping address the special adjustment problems of individuals adversely affected by increased competition from abroad.

If claimants are denied eligibility for TAA benefits, the claimants are entitled to challenge the denial in the U.S. Court of International Trade (CIT) and the U.S. Court of Appeals for the Federal Circuit.  CITBA members regularly represent TAA claimants in these lawsuits.  This representation is nearly always undertaken without charge, as part of a lawyer’s professional obligation to offer pro bono legal services to those unable to afford a lawyer.  CITBA has also sponsored continuing legal education programs on TAA.

CITBA has prepared a new 2012 Primer on Trade Adjustment Assistance Cases to assist attorneys who volunteered to represent claimants under the TAA Act in the CIT.   This Primer replaces the previous 2005 Primer and is current as of the TAA Extension Act of 2011.

This Primer provides an overview of the TAA, reviews the filing procedures for petitioners, and discusses some of the recent cases that have reached the CIT.   The cases involve the following issues: inadequate investigations, the definition of an article, like or directly competitive products, causation, statute of limitations, and attorneys fees under the Equal Access to Justice Act. This Primer deals only with petitions filed with Labor for the TAA for Workers program, according to the Trade Act of 2002, the Globalization Adjustment Assistance Act of 2009, and Trade Adjustment Assistance Extension Act of 2011.  This document is meant for discussion/basic introduction purposes only and should not be cited. It is part of an ongoing project by CITBA and its Ad Hoc Subcommittee on Trade Adjustment Assistance (TAA) to improve the handling of TAA cases by attorneys, the government and the courts. The primer can be found here.

 

 

The Proposed “United States Court of International Trade Modernization Act”

For several years, CITBA has been working in close collaboration with the United States Court of International Trade to facilitate the consideration of legislation that will modernize and improve access to judicial review under the U.S. customs and international trade laws.

The proposed legislation has several purposes. One is to correct judicial anomalies that have come to light in case law since the United States Court of International Trade was created in the Customs Court Act of 1980. A second purpose is to mesh the Court’s jurisdiction more closely with current agency procedures, notably including the widespread use of post-entry customs audits. A third purpose is to expand the Court’s jurisdiction to include more U.S. statutes governing international trade. A fourth and related purpose is to rebalance the workload in the federal judiciary by giving the Court jurisdiction over areas of the law that are logically related to its current role.

The latest draft of the proposed legislation and an explanation of the bill can be found below.

Proposed Legislation (2013)

Explanation of 2013 Legislation
Explanation of 2013 Legislation (rev1) (July 2013)
Explanation of 2013 Legislation (rev2) (August 2013)

Proposed 2013 Legislation

Proposed 2013 Legislation (with indicated changes to existing law)
Proposed 2013 Legislation (with indicated changes to existing law) (rev1) (July 2013)
Proposed 2013 Legislation (with indicated changes to existing law) (rev2) (August 2013)

Previous versions of the proposed legislation from September 2008, June 2009, and August 2010, together with a summary of each version, can be found below.

Proposed Legislation (September 2008)
Proposed September 2008 Legislation
Summary of September 2008 Legislation

Proposed Legislation (June 2009)
Proposed June 2009 Legislation (Redline Version)
Proposed June 2009 Legislation (Non-Redline Version)
Summary of June 2009 Legislation

Proposed Legislation (August 2010)
Explanation of August 2010 Legislation
Proposed August 2010 Legislation
Summary of Customs-Related Provisions

Proposed Legislation (2012)
Explanation of 2012 Legislation
Proposed 2012 Legislation
Proposed 2012 Legislation (with indicated changes to existing law)

If you have any comments on the proposed legislation, please contact Patrick Reed by clicking here.

 

CIT Jurisdiction Legislation

 

 

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